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Fossil Aquifers:A Common Heritage of Mankind

Renee Martin-Nagle*

Introduction

Most of the world is not yet aware that a crisis over allocationand use of fresh water will arrive within our lifetimes. Weare permitted, even encouraged, to continue utilizing waterin inefficient and unsustainable ways for drinking, agricul-ture, and industry, as if there will always be more of this vitalresource available when needed. Every school child is taughtthat the amount of water on the planet always remains thesame-water starts by being soaked up by flora or carried byrivers into the ocean, is released into the air through transpi-ration and evaporation, and finally returns to the earth in theform of raindrops.' If water passing through the hydrologicalcycle is neither created nor lost, how can there be a crisis?

What many people have not grasped is that most of thewater in the world is unavailable for use by humans and otherland-based life forms, because the vast bulk of water on theplanet-ninety-seven percent-exists in the form of saltwater. 2 Of the remaining three percent, slightly more thantwo-thirds is frozen in glaciers and ice caps3 (which, as anyfollower of climate change knows, are releasing their volumesinto the salty seas), and thirty percent is found under thesurface of the planet.4 A quick calculation reveals that only avery small percentage of fresh water-approximately 0.26%of global fresh water reserves-runs through rivers and lies

*Renee Martin-Nagle is a 2010 graduate of the LL.M. program inenvironmental law at The George Washington University Law School.From April 1990 through January 2011 she served as General Counselfor Airbus Americas, Inc.; the views expressed herein are her own andnot those of Airbus or any of its affiliates. The author would like tothank David Freestone for suggesting groundwater as a topic for thisarticle, Salman Salman for introducing her to fossil aquifers, GabrielEckstein for tutoring her on international water law, and all of themfor their generous gifts of time and knowledge.

1. See Igor A. Shiklomanov, World Fresh Water Resources, in WATER IN CRISIS: AGUIDE TO THE WORLD'S FRESH WATER RESOURCES 13, 15 (Peter Gleick ed.,1993).

2. Peter Gleick, An Introduction to Global Fresh Water Issues, in WATER IN CRI-sis: A GUIDE TO THE WORLD's FRESH WATER RESOURCES 3 (Peter Gleick ed.,1993).

3. Shiklomanov, supra note 1, at 13 tbl.2.1; see also FRED PEARCE, WHEN THE

RIVERS RUN DRY 19 (2006).4. Shiklomanov, supra note 1, at 13 tbl.2.1.

in lakes,' while the vast majority of available fresh water isstored underground, and is thus called groundwater.

Most groundwater gathers in areas of porous or permeablerock that are called aquifers. Aquifers vary greatly in theircharacteristics, including size and connectivity to surfacewaters.6 Many aquifers have waters flowing through themat various rates and are replenished, or "recharged," throughrainwater, runoff, rivers, or lakes.7 Some aquifers release, or"discharge," their waters into oases, artesian wells, rivers,or lakes, due to subterranean pressures pushing the watertowards lower pressure.8 Rechargeable aquifers are dynamicsystems that are capable of being replenished, but whose flu-ids may be depleted if withdrawals are greater than the rateof recharge. India, Pakistan, and China are all consistentlywithdrawing water from their aquifers much more quicklythan the aquifers can be recharged, mostly for agriculturaluse.' As the water level in an aquifer decreases, wells must bedrilled deeper to access groundwater."o Growing populationsin these countries result in demand for even more unsustain-able groundwater withdrawals."

Another type of aquifer, known as a "fossil aquifer," occursin rock formations where water was deposited thousands oreven millions of years ago when rainfall or runoff was plen-tiful in the area, but where the current climatic conditionspermit little or no recharge.12 Withdrawals from a fossil aqui-

5. Id. at 13.6. See PEARCE, supra note 3, at 19.7. See Gleick, supra note 2, at 3.8. See The Water Cycle: Ground-Water Discharge, U.S. GEOLOGICAL SURVEY,

http://ga.water.usgs.gov/edu/watercyclegwdischarge.htmi (last visited Nov. 29,2010); THOMAS HARTER, Div. OF AGRIc. AND NATURAL RES., UNIV. OF CAL.,

BASIC CONCEPTS OF GROUNDWATER HYDROLOGY 3 (2003), availableat http://

groundwater.ucdavis.edu/Publications/HarterFWQFS-8083.pdf.9. PEARCE, supra note 3, at 57.10. Id. at 58.11. For a fascinating account of a successful project that gave Indian farmers the

informational tools to balance withdrawals and rates of recharge, see WORLDBANK, DEEP WELLS AND PRUDENCE: TOWARDS PRAGMATIC ACTION FOR AD-

DRESSING GROUNDWATER OVEREXPLOITATION IN INDIA 59 (2009).

12. See U.N. EDUc., SCIENTIFIC & CULTURAL ORG. (UNESCO), Preface toNON-RENEWABLE GROUNDWATER RESOURCES: A GUIDEBOOK ON SOCIALLY-

SUSTAINABLE MANAGEMENT FOR WATER-POLICY MAKERS (Stephen Foster

& Daniel P. Loucks eds., 2006) [hereinafter UNESCO, NON-RENEW-ABLE GROUNDWATER RESOURCES), available at http://unesdoc.unesco.org/

images/0014/001469/146997e.pdf. According to the United Nations Educa-

tional, Scientific and Cultural Organization ("UNESCO"), the term "fossilaquifer" refers to a groundwater resource that contains water that was put in

place millennia ago and whose current rate of recharge may or may not be

JOURNAL OF ENERGY & ENVIRONMENTAL LAWWinter 201 1 39

JOURNAL OF ENERGY & ENVIRONMENTAL LAW

fer permanently impact the future availability of that aquiferas a water resource. 13 Fossil aquifers thus function as terres-trial water banks, neither drawing interest nor losing capital,except when water is extracted through water wells.

Overutilization of groundwater is becoming an urgentproblem, as more than half of the world's populationdepends on groundwater for basic needs such as drinkingwater. 4 According to a 2009 report issued by the UnitedNations Educational, Scientific, and Cultural Organization("UNESCO") and Earthscan, approximately twenty percentof all water used worldwide comes from groundwater, andthat percentage is expected to rise." Currently, less than onepercent of water used is derived from fossil aquifers, with aridcountries such as Algeria, Libyan Arab Jamahiriya ("Libya"),and Saudi Arabia being the prime examples of nations utiliz-ing and sometimes sharing these resources.' 6 The Ogallalaaquifer in the United States, shared by eight states rangingfrom South Dakota to Texas, 7 is an example of a domes-tic fossil aquifer that is being rapidly depleted. The Ogallalacontains as much water as Lake Huron and yields roughlythirty percent of all groundwater used for irrigation in theUnited States." However, as water activist Maude Barlownotes, overexploitation of this resource has reduced cropyields to half of what they were in the 1970s.20 The problemis not limited to the United States. As is discussed later in thisArticle, other fossil aquifers across the globe are also beingdepleted, as China, Saudi Arabia, Jordan, Algeria, and Libyaall utilize fossil aquifers to satisfy the current needs of theirpopulations.2'

Many freshwater systems, including aquifers, lie withinthe borders of a single sovereign nation. According to con-ventional rules of international law, use of the water stored inthese aquifers is governed by the domestic laws of that nation.However, flowing water does not respect national borders,and those freshwater systems traveling over internationalboundaries fall into the realm of international water law.

quite low, and "non-renewable groundwater resource" refers to aquifers thathave a very low rate of recharge. See id. at 14 tbl. 1. Connate groundwater wasalso sealed in place many years ago but is often saline. See id Throughout thispaper, the term "fossil aquifer" will be used to mean both fossil aquifers andnon-renewable groundwater resources, but not connate groundwater.

13. See id. at 17.14. Yoram Eckstein & Gabriel E. Eckstein, Transboundary Aquifers: Conceptual

Models for Development of International Law, 43 GROUNDWATER 679, 679(2005).

15. RICHARD CONNOR ET AL., UNESCO & EARTHscAN, THE UNITED NATIONSWORLD WATER DEVELOPMENT REPORT 3: WATER IN A CHANGING WORLD 100

(2009).16. See id.17. ELEANOR STERLING & ERIN VINTINNER, WATER CONSCIOUSNEsS 20 (Tara Lo-

han ed., 2008). The geological formation commonly known as the Ogallalaaquifer is called the High Plains aquifer by the U.S. Geological Survey, withthe Ogallala Formation occupying 80% of the aquifer system. See High PlainsRegional Ground-Water Study, U.S. GEOLOGICAL SURVEY (Aug. 14, 2010, 2:44PM),http://co.water.usgs.gov/nawqa/hpgwlfactsheets/DENNEHYFS I.html[hereinafter High Plains Groundwater Study]. This paper will use the termOgallala aquifer to refer to the entire High Plains aquifer system.

18. Richard Stengel, Richard Woodbury & Sam Allis, Environment: Ebbing oftheOgallala, TIME, May 10, 1982, available at http://www.rime.com/time/maga-zine/article/0,9171,925386,00.html.

19. High Plains Groundwater Study, supra note 17.20. MAUDE BARLOW, BLUE COVENANT 12-13 (New Press 2008) (2007).21. See infra Part 11.

As will be addressed later, issues of competing sovereigntyarise when water flows across borders, with nations usuallyclaiming exclusive rights over any water falling within theirown jurisdictions. 22 Some writers are beginning to suggestthat, considering water's unique and vital role in support-ing life and society, transboundary ecosystem governance bysovereign nations should be replaced by governance throughcollaborative institutions consisting of a larger communityof citizens, nongovernmental organizations ("NGO"), sci-entists, and scholars. 23 The debates over who should governwater will certainly grow more heated as climate changeadvances and shortages of fresh water are felt more acutely.Although there are many treaties addressing surface water,2 4

and agreements governing the navigational uses of surfacewater have been around for centuries,25 the complexities ofnations sharing groundwater have only recently begun toreceive direct attention.2 6

Much of the scholarly work on groundwater has onlybeen produced in the past forty years, and most of the legalconcepts exist only in the form of draft articles, treaties andconventions.2 7 For example, the Helsinki Rules on the Usesof the Waters of International Rivers, 28 one of the first inter-national agreements to address groundwater resources, wereissued by the International Law Association in 1966,29 theBellagio Draft Treatyo was authored by a group of ground-water scholars in 1989,3' and the draft treaty on groundwa-ter, produced by the International Law Commission of theUnited Nations, was adopted by resolution of the U.N. Gen-eral Assembly in December 2008.32 International law formsslowly, and the nascent body of international groundwaterlaw is much too fresh for many concepts to be deemed tohave crystallized fully. The importance of water-rich, but

22. See infa Part I.G.23. See Bradley C. Karkkainen, Transboundary Ecosystem Governance: Beyond Sov-

ereignty?, in PUBLIC PARTICIPATION IN THE GOVERNANCE OF INTERNATIONAL

FRESHWATER RESOURCES 73, 78-79 (Carl Bruch, Libor Jansky, Mikiyasu Na-kayama & Kazimierz A. Salewicz eds., 2005).

24. As of 1978, an index compiled by the U.N. Food and Agriculture Organiza-tion listed over 2000 treaties and instruments addressing international water-courses. Stephen C. McCaffrey, Water, Politics and International Law, in WATERIN CRISIs 92, 97, 103 n.103 (Peter Gleick ed., 1993).

25. Salman M. A. Salman, The Helsinki Rules, the U.N. Watercourses Conventionand the Berlin Rules: Perspectives on International Water Law, 23 WATER RE-SOURCES DEv. 625, 625 (2007).

26. Seegenerally STEFANO BURCHI & KERSTIN MECHLEM, FOOD & AGRic. ORG. OFTHE U.N. ("FAO"), GROUNDWATER IN INTERNATIONAL LAW: COMPILATION OF

TREATIES AND OTHER LEGAL INSTRUMENTS, (2005). For a thorough analysis of

treaties that mention, but do not have as their primary subject, groundwater,see KYOKO MATSUMOTO, TRANSBOUNDARY GROUNDWATER AND INTERNATION-AL LAW: PAST PRACTICES AND CURRENT IMPLICATIONS 22-25, app. 1(A)-(C)(2002), available at http://www.bvsde.paho.org/bvsacd/cd30/marsumoto.pdf;see also Eckstein & Eckstein, supra note 14, at 680-681.

27. As of this writing, there is only one treaty directly addressing groundwater-the 1977 Franco-Genovese Treaty between French Prefect of Haute-Savoie andthe Swiss Canton of Geneva. See Eckstein & Eckstein, supra note 14, at 681.

28. International Law Association, Fifty-Second Conference, Helsinski, Fin., Aug.1966, The Helsinki Rules on the Uses ofthe Waters ofInternational Rivers, U.N.Doc. A/CONF 5z/ 484 (1967) [hereinafter Helsinki Rules].

29. Id.30. Robert D. Hayton & Albert E. Utton, Transboundary Groundwaters: The Bel-

lagio Draft Treaty, 29 NAT. RESOURCES J. 663, 676-722 (1989) [hereinafterBellagio Treaty].

31. Id32. G.A. Res. 63/124, U.N. Doc. A/RES/63/124 (Jan. 15, 2009).

40 Winter 201 1

FOSSIL AQUIFERS:A COMMON HERITAGE OF MANKIND

non-recharging, fossil aquifers is now becoming clear, butthere is not yet a consensus on how they should be addressed.Rather than managing their use through the same principlesthat are proposed for recharging aquifers, the unique andfragile nature of fossil aquifers demands more deliberate andcommunal practices.

Part I of this Article tracks the history of internationalgroundwater law through analysis of conventions, draft trea-ties, current practices, and scholarly writings on the topic.Part II summarizes the current status of some of the majorfossil aquifers that have been tapped and shows how rapidlythose resources are being depleted under the current legalsystem governing natural resources. After exploring the con-cepts of "common concern of humanity" and the "commonheritage of mankind," Part III then proposes that, giventheir character as non-renewing resources and the paucity oflaw on the topic, both wholly domestic and transboundaryfossil aquifers should be treated as the common heritage ofmankind. As such, they should be managed by an interna-tional body that would include hydrologists and water-poornations, and utilized sustainably with a keen focus on preser-vation for future generations.

Part I

A. The State of International Environmental Law

The commonly accepted starting point for determiningwhether a practice or principle is considered to have achievedthe status of international law" is Article 38 of the Statuteof the International Court of Justice ("ICJ"), 3 4 a court estab-lished by the United Nations in 1945.35 In analyzing anddeciding a case under international law, the court may utilizethe items on the following list as guidelines, in descendingorder of importance:

a. international conventions, whether general or particu-lar, establishing rules expressly recognized by the con-testing states;

b. international custom, as evidence of a general practiceaccepted as law;

c. the general principles of law recognized by civilizednations;

d. subject to the provisions of Article 59 [of the Statute ofthe ICJ, which states that ICJ decisions are only bind-ing on the parties to that case], judicial decisions andthe teachings of the most highly qualified publicists of

33. See SEAN D. MURPHY, PRINCIPLES OF INTERNATIONAL LAW 65 (2006). The listprovided in Article 38 duplicates the list that was provided to the PermanentCourt of International Justice, which was the precursor to the InternationalCourt of Justice. Id.

34. Statute of the International Court of Justice, art. 38, Oct. 24, 1945, 59 Stat.1031.

35. The Court, INT'L COURT OF JUSTICE, http://www.icj-cij.org/court/index.php?pl=1 (last visited Nov. 29, 2010).

the various nations, as subsidiary means for the deter-mination of rules of law.3 6

The body of international law addressing groundwateris sparse and was developed only recently. Since signifi-cant utilization of transboundary fossil aquifers is a recentphenomenon, any practice that has been established withrespect to them cannot yet be deemed to be "evidence ofa general practice."3 Draft treaties developed on the topicwill be addressed herein, even though they generally fall intothe category of "teachings of the most highly qualified pub-licists of the various nations," as opposed to "internationalconventions," because they have not yet entered into force.,However, one could argue that they are evidence of "interna-tional custom" and/or "general principles of law recognizedby civilized nations."3 Indeed, as will be more fully explored,there is currently a vigorous debate about the state of cus-tomary international law with respect to groundwater andwhether the principles of customary international environ-mental law should trump the principles of customary inter-national water law. Because this debate played an importantrole in the development of the few declarations, conventions,and draft treaties that address transboundary groundwater,either tangentially or directly, we begin our study of interna-tional groundwater law by exploring the history of the prin-ciples included in those declarations, conventions, and drafttreaties.

B. United Nations Declarations

The Declaration of the U.N. Conference on the HumanEnvironment, issued following a conference held in Stock-holm, Sweden, in June 1972 ("Stockholm Declaration"),39

can be viewed as the first evidence of nations turning theircollective attention to environmental issues. Written in loftyand idealistic prose during a time of intense interest and activ-ity in environmental matters, the Stockholm Declarationchronicled the hazards facing the planet as a result of humanactivities,4 0 called for measures to safeguard natural resourcesfor future generations ("generational equity principle"),' andproposed a coordinated approach to all matters affecting theenvironment.4 2 Principle 5 of the Stockholm Declarationstates that "non-renewable resources of the earth must beemployed in such a way as to guard against the danger oftheir future exhaustion and to ensure that benefits from suchemployment are shared by all mankind."3 That goal of shar-ing resources was tempered by Principle 21, which reaffirmedstates' "sovereign right to exploit their own resources pursu-ant to their own environmental policies[,]" while recogniz-

36.37.38.39.

40.41.42.43.

Statute of the International Court of Justice, supra note 34, art. 38.See id.See id.United Nations Conference on the Human Environment, Stockholm, Swed.,June 5-16, 1972, Declaration of the United Nations Conference on the HumanEnvironment, U.N. Doc. A/CONF.48/14/Rev.1, Ch. I (June 16, 1972) there-inafter Stockholm Declaration].See id. proclamations 1-3.Id. princs. 2, 5.Id princs. 13, 20, 22, 24.Id. princ. 5.

Winter 201 I1 41


ing that states have a responsibility to guard against causingdamage to the environment beyond their borders.44 As willbe discussed later, the conflict between a state's sovereigntyover natural resources within its borders and its obligation torefrain from actions that would harm its neighbors has notyet been resolved with respect to groundwater.

The Rio Declaration 4 was issued at the U.N. Confer-ence on Environment and Development, held in Rio de

Janeiro, Brazil, from June 3 to June 14, 1992 (known as the"Earth Summit"), almost twenty years to the day after theU.N. Conference on the Human Environment was held inStockholm. The Rio Declaration reaffirmed the principlesof the Stockholm Declaration, but its own principles weremore cautious. The Rio Declaration grants nations "the sov-ereign right to exploit their own resources pursuant to theirown environmental and developmental policies[,]" thus add-ing developmental objectives, to the sovereign interests ofnations. 6 In the view of some scholars, adding a reference todevelopmental policies merely affirmed "an existing and nec-essary reconciliation with the principle of sustainable devel-opment and the sovereignty of states over their own naturalresources."47

In recognition that economic development was creat-ing extreme pressures on natural resources, the Rio Dec-laration spoke frequently of sustainable development andcooperation among nations and called for establishmentof domestic laws to protect the environment.4 8 However,unlike the Stockholm Declaration, concern for future gen-erations was mentioned only once, in Principle 3, by declar-ing that the "right to development must be fulfilled so asto equitably meet developmental and environmental needsof present and future generations."49 Similarly, the develop-ment of international legal norms is mentioned only once,in Principle 13, which, in a slight expansion of Principle 22of the Stockholm Declaration, calls for a system to deter-mine compensation for damage caused by environmentaldegradation ("polluter pays principle").5 0 Principle 12 advisesnations to cooperate with one another, in stating that "[u]nilateral actions to deal with environmental challenges out-side the jurisdiction of the importing country should beavoided. Environmental measures addressing transboundaryor global environmental problems should, as far as possible,be based on an international consensus."5 ' Principle 15 pro-vides the now-famous "precautionary principle": "In order toprotect the environment, the precautionary approach shallbe widely applied by States according to their capabilities.Where there are threats of serious or irreversible damage, lack

44. See id. princ. 21.45. United Nations Conference on Environment and Development, Rio de Janie-

ro, Braz., June 3-14, 1992, Rio Declaration on Environment and Development,U.N. Doc. A/CONF.I51/5/Rev.1, reprinted in 31 1.L.M. 874 (1992).

46. See id. (emphasis added).47. PATRICIA BIRNIE & ALAN BOYLE, INTERNATIONAL LAW AND THE ENVIRONMENT

110 (2002).48. See Rio Declaration, supra note 45, pmbl., princs. 4, 7-8, 11-12, 27.49. Compare Stockholm Declaration, supra note 39, proclamations 6-7, princs.

1-2, with Rio Dedaration, supra note 45, pmbl., princ. 3.50. See Rio Declaration, supra note 45, princ. 13; Stockholm Declaration, supra

note 39, princ. 22.51. Rio Declaration, supra note 45, princ. 12.

of full scientific certainty shall not be used as a reason forpostponing cost-effective measures to prevent environmentaldegradation."52 Principle 7 of the Rio Declaration also intro-duced the principle of "common but differentiated respon-sibilities," which provides that nations' responsibilities foraddressing environmental problems are dependent on theircontributions to those environmental problems.5 1 Pursuantto this principle, developing nations have a lower degree ofresponsibility for addressing such problems than developednations, which have been freely polluting the planet for morethan a century.54 Finally, in Principle 10 the Rio Declara-tion calls on states to guarantee public access to informationon environmental issues, such that individual citizens canbecome more informed and involved in the decision-makingprocess ("transparency principle").55 The Stockholm Declara-tion places responsibility on the media to disseminate infor-mation to the public," but the Rio Declaration shifts thatresponsibility to the states. The Rio Declaration sets forth anumber of principles that have become familiar in environ-mental circles. Unfortunately, over the course of the twentyyears between the Stockholm Declaration and the Rio Dec-laration, the generational equity principle lost momentumand was overtaken by the principle of sustainable economicand social development.

C. The International Law Association's Contributions

One of the earliest international guidelines to include ground-water was issued in August 1966 by the International LawAssociation ("ILA"), a body of international law scholars andprofessionals that studies, clarifies, and develops private andpublic international law." The Helsinki Rules on the Uses ofthe Waters of International Rivers ("Helsinki Rules")" focusexclusively on waters linked to a river basin and thus includeonly the nations that share such waters. 9 Articles IV throughVIII call for reasonable and equitable sharing of waters bythose nations that are part of the same river basin,6 0 a conceptthat reappeared later in the 1997 United Nations Conventionon the Law of the Non-Navigational Uses of InternationalWatercourses ("Watercourses Convention").6 ' The HelsinkiRules may have set a pattern for future draft agreements byproviding a list of factors for parties to consider when deter-mining how to apportion water equitably.62 However, ArticleVII established the overarching principle of utilization bydeclaring that "present reasonable use" may not be subordi-

52. Id. princ. 15.53. Id. princ. 7.54. See id.55. Id. princ. 10.56. See Stockholm Declaration, supra note 39, princ. 19.57. Home, INT'L LAW AsS'N, http://www.ila-hq.org/ (last visited Nov. 29, 2010).58. Helsinki Rules, supra note 28, at 2.59. See id. at I (defining international drainage basins as extending over multiple

nations)60. Id. at 1-2.61. Convention on the Law of the Non-Navigational Uses of International Wa-

tercourses, art. 6, May 21, 1997, 36 I.L.M. 700 [hereinafter WatercoursesConvention].

62. See Helsinki Rules, supra note 28, at 1-2 (listing factors).

42 Winter 201II


nated to a prospective future need," thus undermining anyattempt to preserve water for future generations. Because theHelsinki Rules addressed only riparian waters, fossil aqui-fers are outside of its scope, although Article II refers to both.surface and underground waters."" As the work of a groupof legal scholars, the Helsinki Rules have no enforcementmechanism nor can they stand as legal authority but, as theprecursor for other agreed texts, they can serve as evidence ofthe beginning of customary international groundwater law.65

In recognition that the Helsinki Rules did not adequatelyaddress aquifers, in particular fossil aquifers, the ILAadopted' the Seoul Rules on International Groundwaters("Seoul Rules") at its sixty-second conference, held in Seoul,South Korea, in 1986.66 The Seoul Rules are very short-amere four articles-and are meant to supplement the Hel-sinki Rules by bringing transboundary groundwater withinthe purview of the Helsinki Rules. Thus, the groundwaterin an aquifer is deemed to fall under the Seoul Rules if theaquifer lies under the lands of two or more nations, even ifthere is no water flowing between the aquifer and the sur-face. 7 Pursuant to the Seoul Rules, common concepts suchas the protection of the aquifer from pollution, sharing ofinformation, cooperation on management, and recognitionof the integration between surface and groundwaters are spe-cifically extended to aquifers.6 1 The Seoul Rules also advisestates to consider the interdependence and interconnectionsbetween and among surface waters and different aquifers.6 9

. By 1997, the ILA determined that it needed to update theentirety of the Helsinki Rules to reflect'changes in customaryinternational water law. To achieve this, the ILA adopted theBerlin Rules on Water Resources ("Berlin Rules") in Berlin,Germany in August 2004.70 The Berlin Rules were draftedby the ILA Water Resources Committee, which was led bySpecial Rapporteur Joseph Dellapenna.7 1 The committeesplit sharply on several issues, resulting in a dissent beingpublished. Led by Stefano Burchi, a well-known scholar andlawyer from the Food and Agriculture Organization of theUnited Nations ("FAO"), the dissent felt strongly enoughto state that "[t]he 1966 Helsinki Rules and the other rulesadopted by the ILA in subsequent resolutions on the lawgoverning the waters of international drainage basins havebeen widely accepted and followed by basin states and are

justly regarded as embodying the rules of customary interna-tional law.... The adoption of the rules now proposed in theReport of the WRC [Water Resources Committee] wouldmark a radical. and unwarranted departure from existing

63. Id at 2.64. Id. at 1.65. See Eckstein & Eckstein, supra note 14, at 681.66. International Law Association, Sixty-Second Conference, Seoul, S. Kor., 1968,

The Seoul Rules on International Groundwaters, reprinted in Burchi & Mech-lem, supra note 26, at 534-36 [hereinafter Seoul Rules].

67. Id. at 534-35.68. Id. at 535-36.69. Id. at 536.70. International Law Association, Berlin Conference, Berlin, Ger., 2004, The Ber-

lin Rules on Water Resources, 71 Int'l L. Ass'n Rep. Conf. 334, 337-38, avail-able at http://www.internationalwaterlaw.org/documents/intdocs/ILABer-linRules-2004.pdf [hereinafter Berlin Rules].

71. Id at 338.

customary law; it would diminish the influence and repu-tation of the ILA."72 Specifically, the dissent disagreed withthe inclusion of domestic water in a document originallymeant to update the law on international waters, consideringsuch an inclusion to be an unwarranted leap that expandedcustomary law to include domestic systems . 7 From a legalperspective, the dissent argued that the committee had pri-oritized the development of international environmental lawover international water law.74 For example, under Articles 12and 16, the dissent argued that a state's obligation of man-agement and protection of the resource trumps its right toequitable use, a fundamental premise of international waterlaw.75 However, from the viewpoint of Special RapporteurDellapenna, the Berlin Rules "provide a clear, cogent, andcoherent summary of the customary international law appli-cable to water resources, incorporating the experience of thefour decades since the [ILA] approved theHelsinki Rules."7 6

The Berlin Rules built on the Helsinki Rules in providingguidelines for determining equitable use, with present, vitalhuman needs taking top priority.7 7 In a measure displayingthe emerging importance of groundwater concerns, the Ber-lin Rules dedicated a full chapter to groundwater, rangingfrom Article 36 to Article 42.78 Fossil aquifers are specificallyincluded in the scope of Article 36, though not named assuch.79 A "precautionary approach" to sustainability of aqui-fers is mandated in Article 380 but, according to Article 40,sustainable management of fossil aquifers is not to be deemedto prevent withdrawals.8 Thus, Article 40 of the Berlin Rulesrepeats the mantra of Article VII of the Helsinki Rules: thatpresent needs should not be subordinated to prospectivefuture requirements. 82

The Berlin Rules also state that aquifers are to be protectedagainst pollution, 3 and that transboundary aquifers are tobe cooperatively managed as entire groundwater systems bystates under whose borders they lie.84 Further, while they donot restate the polluter pays principle, they do provide a pro-cedural right of redress for harms to groundwater supplies.8 1

Special Rapporteur Dellapenna describes the approach takenin the Berlin Rules as an attempt to reconcile internationalwater law with both international environmental law andinternational human rights law."6 -

72. Slavko Bogdanovic, Charles Bourne, Stefano Burchi & Patricia Wouters, ILABerlin Conference 2004 - Water Resources Committee Dissenting Opinion,Aug. 9, 2004, available at http://www.internationalwaterlaw.org/documents/intldocs/ilaberlin rules dissent.html (hereinafter Water Resources Commit-tee Dissenting Opinion].

73. See id.74.75.76.

77.78.79.80.81.82.83.84.85.86.

IdSee id.Joseph W Dellapenna, International Water Law in a Climate ofDisruption, 17MICH. ST. J. INT'L L. 43, 78 (2008).See Berlin Rules, supra note 70, at 363-364 (Article 14).See id. at 384-90..Id. at 384.Id. at 385-86.Id. at 386-87.See id.Id. at 387-89.Id at 389-90.Id at 406-10.Dellapenna, supra note 76, at 84.

Winter 201 1 43


At a conference sponsored by the FAO four months afteradoption of the Berlin Rules, Stephano Burchi (a member ofthe ILA Water Resources Committee that drafted the BerlinRules and a co-signer of the dissent) and Kerstin Mechlam(a legal officer of the FAO and a consultant to the ILA WaterResources Committee) gave a presentation on what they per-ceived to be accepted customary international law for water,and outlined the issues yet to be clarified.8 1 In their mindsthe Helsinki Convention on Transboundary Watercourses"reaffirmed three cardinal rules of international water law: thepolluter pays principle, the sustainable development princi-ple, and the precautionary principle.8

1 In addition, they pos-tulated that other general principles had become recognizedunder international water law, such as equitable utilization ofresources, the requirement to use all appropriate measures toprevent significant harm in a neighboring state, and the dutyfor states to cooperate in sharing information and in givingnotice of planned measures that could affect shared waterresources.9 0

However, Burchi and Mechlam noted that questionsremain about the meaning and extent of certain emerg-ing principles because of the nascent state of internationalgroundwater law. In their estimation, by 1994, other, evennewer principles of international groundwater law were begin-ning to emerge, such as integration of land and groundwatermanagement, integration of overall resource management,the obligation of sustainable use (which could include limit-ing groundwater withdrawals), and the obligation to protectwater resources from pollution.9 ' Curiously, in spite of thearguments made in Burchi's dissent to the Berlin Rules thatreasonable and equitable use in international water law stilloverrides international law's principle of resource protection,Burchi and Mechlam agreed that consensus was buildingthat the requirement to protect groundwater is as importantas the right to its development and use.92

D. The Bellagio Approach

In 1977, Albert Utton, frustrated and concerned by the lackof established laws and procedures with respect to aquifersand understanding the increasing and future importance ofgroundwater, began a dialogue among legal and scientificexperts to crystallize what they viewed as essential require-ments for proper use and management of transboundaryaquifers.9 3 The group met at the Rockefeller Foundation Bel-lagio Center in Bellagio, Italy in 1987 to review and discuss

87. Stefano Burchi, Senior Legal Officer, FAO Legal Office, & Kerstin Mechlam,Legal Officer, FAO Legal Office, Presentation at UNESCO-ISARM-MEDConsultative Meeting on Key Issues for Sustainable Management of Trans-boundary Aquifers in the Mediterranean and in South Eastern Europe: LegalInstruments for Transboundary Groundwater Resources Management, (Oct.21-23, 2004), available at http://inweb.gr/workshops/presentations-pdf/groundwater/Burchi.pdf.

88.. See infra Part I.E.89. Id.90. Id.91.92.93.

Id.See id.Bellagio Treaty, supra note 30, at 666.

their work.9 The notes and tapes of that meeting formedthe basis of the Bellagio Draft Treaty ("Bellagio Treaty"),9 5

which was penned by R.D. Hayton, G.E. Radosevich, andAlbert Utton and presented at a conference of the Interna-tional Water Resources Association in Ottawa, Canada inMay 1988.96 Under the Bellagio Treaty, with the assent ofthe governments participating in the treaty, a given loca-tion could be designated a "groundwater conservation area"based on consideration of whether withdrawals exceededor might exceed recharge, whether recharge has or mightbecome impaired, whether the aquifer has or might becomecontaminated, and whether management is necessitated by arecurring or persistent drought.9 7 Because withdrawals fromfossil aquifers would always exceed the rate of recharge, theBellagio Treaty would presumably deem all fossil aquifersgroundwater conservation areas.

The Bellagio Treaty also called for information gather-ing" and sharing,99 water quality protection 00 planneddepletion of aquifers,'o' drought and emergency planningand response,'02 public access to information, 0 3 and.a com-prehensive dispute settlement mechanism.0 4 It presented athoughtful approach to joint aquifer management whileallowing states to maintain their sovereignty.

E. The Dublin Rules and the Helsinki Convention onTransboundary Watercourses

In addition to playing an important role in the June 1992Earth Summit, water was also the focus of a number of otherglobal gatherings that same year. In January 1992, the Inter-national Conference on Water and the Environment in Dub-lin, Ireland, began with a dramatic flourish, as children fromthe world over pleaded for water to be preserved for theirgeneration.'0 For five days, five hundred experts from onehundred governments and more than eighty organizationsdiscussed the critical issues threatening freshwater resourc-es.10 6 At the end of the conference, the participants sent amessage to those who would gather at the Earth Summit inJune by adopting four principles that have come to be knownas the Dublin Statement:

94. Id., at 667.95. Id. at 676.96. Id. at 666.97. Id. at 693.98. Id. at 682-83.99. Id. at 687.100. Id.101. Id. at 703.102. Id. at 706-08.103. Id. at 709-10.104. Id at 718-19; see also Raj Krishna & Salman M. A. Salman, International

Groundwater Law and the World Bank Policy for Projects on TransboundryGroundwater in World Bank Technical Paper No. 456, Groundwater: Le-gal and Policy Perspectives, Proceedings of a World Bank Seminar 178-79,(Salman M. A. Salman ed., 1999) (summarizing and evaluating the BellagioTreaty).

105. International Conference on Water and Development, Dublin, Ir., Jan. 26-31,1992, The Dublin Statement on Water and Sustainable Development, U.N.Doc. A/CONEI51/PC/112 [hereinafter Dublin Statement], available athttp://www.gdrc.org/uem/water/dublin-statement.html.

106. Id.

Winter 201 I44


Principle No. 1-Fresh water is a finite and vulnerableresource, essential to sustain life, development and theenvironment.

Principle No. 2-Water development and managementshould be based on a participatory approach, involvingusers, planners and policy-makers at all levels.

Principle No. 3-Women play a central part in the provi-sion, management and safeguarding of water.

Principle No. 4-Water has an economic value in all itscompeting uses and should be recognized as an economicgood. 07

While the Dublin Statement was not binding on any par-ties, the action agenda accompanying the Dublin Statementwas among the first to call on the world's nations to use theriver basin system, integrating both surface and groundwater,as the principal framework for managing water resources."oFossil aquifers were not mentioned, but the action agendaaccompanying the Dublin Statement reaffirmed the polluterpays principle, called for sustainable development in urbanareas and responsible water use in rural areas, requestedtraining on water issues and stressed the importance of gath-ering and exchanging data regarding the hydrological cycleon a global scale. 0 '

The Helsinki Convention on Transboundary Water-coursesio was signed two months after the Dublin Statement,in March 1992, and entered into force in 1996.'" It markedthe first time that the transboundary aspects of surface andgroundwater in river basins were the focus of an enforceableconvention under international law.112 While the Conven-tion defines transboundary waters to include groundwater,its focus is exclusively on the rechargeable aquifers that arepart of riparian systems; 13 therefore, fossil aquifers and otheraquifers not dependent on rivers for recharge are not includedwithin its scope. However, a reading of the terms of the Con-vention provides guidance on the legal principles that weredeemed to be applicable to groundwater at the time.

Although the Helsinki Convention on TransboundaryWatercourses does not focus primarily on aquifers, eitherrechargeable or confined, it incorporates themes similarto those found in the Stockholm Declaration and the Rio

107. Id108. See id.109. See id.110. Transboundary Watercourses and International Lakes, Mar. 17, 1992, 31

I.L.M. 1313 [hereinafter Helsinki Convention].11. United Nations Econ. Comm'n for Eur., The Water Convention (2009),

available at http://www.unece.org/env/water/publications/brochure/WaterConvention e.pdf.

112. The convention included as its parties the states that opted to belong to theUnited Nations Economic Commission for Europe, which was organized in1947 by the U.N. Economic and Social Council and is comprised of 56 coun-tries in the European Union, non-EU Western and Eastern Europe, South-East Europe and Commonwealth of Independent States ("CIS") and NorthAmerica. About UNECE, United Nations Econ. Comm'n for Eur., http://www.unece.org/about/about.htm (last visited Nov. 29, 2010).

113. Helsinki Convention, supra note 110, at 1314. As of 2007, the ECE had iden-tified more than seventy transboundary aquifers within its region and expect-ed to find more. U.N. Econ. Comm'n for Eur., Our Waters: Joining HandsAcross Borders 8 (2007).

Declaration, such as the principles of polluter pays, precau-tionary measures, and generational equity.14 The HelsinkiConvention on Transboundary Watercourses also empha-sizes cooperation on research and development, exchange ofinfbrmation, and public education on water resource issues."Curiously, neither sustainable development nor sustainableuse is mentioned anywhere in the Helsinki Convention onTransboundary Watercourses, although promotion of "sus-tainable water resources management, including applicationof the ecosystems approach[,]" is listed as an aspirational goalfor the parties. 16

F The Watercourses Convention

Meanwhile, the United Nations began its own attempt tocodify existing customary law. At the request of the Gov-ernment of Finland, which had hosted the conference atwhich the Helsinki Rules were adopted in 1966, the U.N.General Assembly adopted Resolution 2669 on ProgressiveDevelopment and Codification of the Rules of InternationalLaw Relating to International Watercourses on December 8,1970. Resolution 2669 instructed the U.N. International LawCommission ("ILC") to undertake a study of the "non-nav-igational use of international watercourses."'1 7 Twenty-fouryears later, the ILC completed its work and issued its recom-mendations to the Sixth Committee of the United Nations.Based on these recommendations, the ILC drafted the textof the Convention on the Law of Non-navigational Uses ofInternational Watercourses ("Watercourses Convention"),1 1 8

which was adopted by a nearly unanimous vote (103-3) of theU.N. General Assembly on May 21, 1997."9

Although the Watercourses Convention has yet to enterinto force, an examination of the Convention's key principlesmay provide an insight into what the United Nations viewedas developing customary law concerning water rights in gen-eral and groundwater in particular. The Watercourses Con-vention echoes some of the same concepts that appeared inprior official texts. For example, the section entitled "GeneralPrinciples" contains a requirement for equitable and reason-able utilization and sustainable development,120 an obligationto take "all appropriate measures" to prevent significant harmto other watercourse states,12' the polluter pays principle, 12 2

and the obligations to cooperate1 23 and exchange data. 124 TheWatercourses Convention also includes requirements for theprotection of ecosystems 125 and the marine environment, 12 6

114. Helsinki Convention, supra note 110, at 1316.115. Id.116. Id. at 1317.117. G.A. Res. 2669 (XXV), 1 2, U.N. Doc. A/7991 (Dec. 8, 1970).118. Watercourses Convention, supra note 61.119. G.A. Res. 51/229, annex, U.N. Doc. A/RES/51/229 (July 8, 1997).120. Id. arts. 5, 6.121. Id. art. 7. This Article is further enhanced by the provisions of Article 27,

which requires "all appropriate measures" to prevent or mitigate conditionsthat may cause harm to other states. Id. art. 27.

122. Id. art. 7.123. Id art. 8.124. Id. art. 9.125. Id. art. 20.126. Id. art. 23.

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prevention and control of pollution'2 7 and of alien species,128and the inclusion of a dispute settlement mechanism in Arti-cle 33.129

One reason the Watercourses Convention failed to gainenough acceptance to achieve entry into force is because ofthe tension between the obligation to prevent significantharm, a fundamental premise of international environmen-tal law, and the right to equitable and reasonable utilization,considered to be a standard of international water law.130

Some countries felt that having a separate obligation to pre-vent harm wrongly placed it on par with the sacrosanct rightof equitable and reasonable utilization, and others objectedto having equitable and reasonable utilization achieve prior-ity over the obligation to protect against harm. 31 Generallyspeaking, upstream users wanted equitable and reasonableutilization to have priority so that they would be free to uti-lize the waters flowing through their borders as they wish,and downstream users wanted the waters reaching them tobe protected from significant harm, such as pollution andoveruse.132 The Convention is not clear as to which concepthas priority, but what is clear is that the conflict betweenprotection of resources according to international environ-mental law and the right to utilization under internationalriparian law continued through the time of the WatercoursesConvention 33 and continues to this day.134

As discussed earlier, giving primacy to equitable utiliza-tion over prevention of harm is a declaration that establishedrules of international water law have priority over those ofinternational environmental law. The reason that the conflictbetween these two principles continues is that both argu-ments have merit-water must be both protected and uti-lized. In an era when protection of water resources is vital tothe continued health of humanity and ecosystems, a resolu-tion of the conflict between these two competing philoso-phies is urgently required. One solution, which is discussedlater in this Article, is to have the water in fossil aquifersmanaged and allocated on a global basis, so that all nationswould be required to protect the resource and no countrywould have the unilateral right to utilize fossil waters withoutthe consent of a community of nations.

G. The United Nations Draft Articles

In the early stages of its study of shared natural resources,the ILC viewed fossil aquifers to be similar enough to oil andnatural gas that the three forms of shared natural resources

127. Id. art. 21.128. Id. art. 22.129. Id. art. 33.130. For an account of the history of the conflict between these two concepts dur-

ing the drafting of the Watercourses Convention, see Charles B. Bourne, 7heInternational Law Commissions Draft Articles on the Law of International Wa-tercourses: Principles and Planned Measures, 3 COL.o. J. INT'L ENvrL. L. & POL'v65, 73-91 (1992).

131. See id.132. See Salman, supra note 25, at 633-34.133. See Bourne, supra note 130, at 73-91.134. See generally Albert E. Utton, Which Rule Should Prevail in International

Water Disputes: That of Reasonableness or That of No Harm?, 36 NAT. RE-SOURCESJ. 635 (1996).

were planned to be included together in one body of work. 35

However, the work on groundwater took priority and wasseparated from the study on oil and natural gas. In 2007, theSpecial Rapporteur Chusei Yamada officially recommendedthat the work on transboundary aquifers proceed separately,reasoning that "(w)ater is the life-supporting resource formankind and there exists no alternative resource. While oiland natural gas are important resources, they are not essen-tial for life and there are various alternative resources." 36

The scope of the draft articles was also expanded, fromincluding only fossil aquifers to including both fossil andrechargeable aquifers,' 7 and the term aquifer was definedwithout reference to whether the groundwater has any linkto surface water. Using its own Watercourses Convention asa framework .and guide, the ILC produced nineteen draftarticles that were annexed to a U.N. General Assembly res-olution that was adopted without a vote on December 11,2008 ("U.N. Draft Aquifer Articles").' The issue of whetherthe U.N. Draft Aquifer Articles would be transformed into aconvention was left to be debated at a later time.'

Because the U.N. Draft Aquifer Articles represent thethoughts of global experts on how nations should cooperateon the protection and utilization of groundwater, they couldbe considered as evidence of international groundwater law,even though they have not yet entered into force.o In thepreamble of the U.N. Draft Aquifer Articles, we once againfind references to the U.N. Charter and the Rio Declaration,along with acknowledgements that aquifers are particularlyvulnerable to pollution and must be protected and sustain-ably developed "for present and future generations.""'4 Thescope of the draft articles includes utilization of aquifers,activities affecting aquifers, and "[mleasures for the protec-tion, preservation[,] and management of... aquifers or aqui-fer systems."'42 Aquifer systems consisting of two or moreaquifers that are hydrologically linked, and which, therefore,could be managed as a single unit, are specifically included.4 3

During the course of the ILC deliberations about thescope of the draft articles and their impact on sovereignty,states consistently expressed concern that the articles not beworded so that one could infer that the waters of an aqui-fer constitute a common heritage of mankind."' A state's

135. Rep. of the Int'l Law Comm'n, 55th Sess., May 5-June 6, July 7-Aug. 8, 2003,U.N. Doc. A/58/10; GAOR, 58th Sess., Supp. No. 10 (2003) [hereinafter2003 ILC Report].

136. Special Rapporteur, Fourth Rep. on Shared Natural Resources: TransboundaryGroundwaters, Int'l Law Comm'n, at 5, U.N. Doc. A/CN.4/580 (Mar. 6,2007) (by Chusei Yamada).

137. Rep. of the Int'l Law Comm'n, 57th Sess., May 2-June 3, July Il -Aug. 5,2005, at 14-15, U.N. Doc. A/60/10; GAOR, 60th Sess., Supp. No. 10 (2005)[hereinafter 2005 ILC Report].

138. G.A. Res. 63/124, U.N. Doc. A/RES/63/124 (Jan. 15, 2009) [hereinafterDraft Aquifer Articles].

139. Rep. of the Int'l Law Comm'n, 60th Sess., May 5-June 6, July 7-Aug. 8, 2008,at 14, U.N. Doc. A/63/10; GAOR, 63d Sess., Supp. No. 10 (2008).

140. See Statute of the International Court of Justice, art. 38, Oct. 24, 1945, 59Star. 1031 (including "the teachings of the most highly qualified publicists ofthe various nations, as subsidiary means for the determination of rules of law").

141. Draft Aquifer Articles, supra note 138, pmbl.142. Id. art. 1.143. Id. art. 2.144. 2005 ILC Report, supra note 137, at 28-29; Rep. of the Int'l Law Comm'n,

56th Sess., May 3-June 4, July 5-Aug. 6, 2004, at 141, U.N. Doc. A/59/10;

46 Winter 201II


sovereignty over the portion of an aquifer that lies withinits jurisdiction is therefore acknowledged in Article 3.141 Inaccordance with the definition of an aquifer provided inArticle 1, Article 3 extends state sovereignty over the geologi-cal formation as well as the water in the saturated zone of theformation. 146 Article 3 thus preserves states' exclusive sover-eignty over water resources that lie within their borders, withthe limitation that such sovereignty must be exercised withinthe bounds of international law.

Stephen C. McCaffrey, one of the Special Rapporteurs ofthe Watercourses Convention, calls the scope of the U.N.Draft Aquifer Articles' declaration of exclusive sovereignty"breathtaking." 7 McCaffrey argues that the U.N. DraftAquifer Articles refer only to sovereignty over the rockformations that contain the groundwater, and not to thegroundwater itself, because fluid is always moving and thusis incapable of possessing the static character necessary forexercise of sovereignty. In his view, granting complete sover-eignty over a watercourse marks a return to the now-obsoleteHarmon Doctrine, which allows nations to utilize waterswithin their borders for any purpose they deem appropri-ate, without regard to the consequences of their utilization toother states.'14 By inserting Article 3, McCaffrey argues, theILC deviated from its principle mission of codifying develop-ing international law and acceded to the advocacy of a fewstates that argued vociferously for complete sovereignty overtheir water resources.149 Indeed, in 2008, only six states com-mented on draft Article 3, with Austria, Brazil, Cuba, Israel,and Turkey arguing in favor of complete sovereignty, andonly Portugal suggesting a "shift to a more actual and miti-gated doctrine of sovereignty" that would emphasize "theprinciple of cooperation between States."'5 0

The now-familiar right to equitable and reasonable utili-zation appears in Article 4, with states being directed with"shall" statements to maximize the long-term benefits ofwater use and to enter into individual and joint utilizationplans, bearing in mind the needs of present and future gen-erations.'5' Article 4 also states that recharging aquifers shallbe utilized so as not to "prevent continuance of [their] effec-tive functioning.""' The U.N. Draft Aquifer Articles providea list of factors to analyze when determining what constitutesequitable and reasonable utilization.' The list is nearly iden-

GAOR, 59th Sess., Supp. No. 10 (2004); 2003 ILC Report, supra note 135, at263.

145. Draft Aquifer Articles, supra note 138, art 3.146. Id. arts. 1, 3.147. Stephen C. McCaffrey, Current Developments: The International Law Com-

mission Adopts Draft Articles on Transboundary Aquifers, 103 AM. J. INT'L.L. 272, 289 (2009) (hereinafter McCaffrey, Current Developments].

148. Gabriel Eckstein, Application of International Water Law to TransboundaryGroundwater Resources, and the Slovak-Hungarian Dispute Over Gabcikovo-Na-gymaros, 19 SUFFOLK TRANSNAT'L L. REV. 67, 73 (1995) [hereinafter Eckstein,Gabcikovo].

149. McCaffrey, Current Developments, supra note 147, at 290-91.150. Int'l Law Comm'n, Shared Natural Resources: Comments and Observations

by Governments on the Draft Articles on the Law of Transboundary Aqui-fers, 60' Sess., May 5-June 6, July 7-Aug. 8, 2008, at 21-22, U.N. Doc. A/CN.4/595 (Mar. 26, 2008).

151. See Draft Aquifer Articles, supra note 138, art. 4.152. Id. art. 4.153. Id. art. 5.

tical to the list in Article 6 of the Watercourses Convention,'although neither list can be considered entirely compre-hensive. In weighing social, economic, and other needs,the needs of both present and future generations must begiven consideration.' Contributions to the formation andrecharge of the aquifer are deemed to be important,"' asare the actual and potential effects of utilization on anotherstate.'5 7 Advancements in hydrogeology have shown thataquifers play an important role in the health of ecosystems,so the impact of aquifer utilization on ecosystems has alsobeen a factor.' 8 Thus, in both the preamble and the text ofU.N. Draft Aquifer Articles, we once again see references tothe needs of future generations (generational equity), a direc-tive to utilize aquifers in a sustainable manner while beingmindful of impacts on future use, and an acknowledgementof the responsibility to consider other living creatures thatdepend on ecosystems for their existence' 59-although "spe-cial regard" is still to be given to "vital human needs."'60

It should be noted, however, that in Professor McCaffrey'sopinion, the declaration of sovereignty in Article 3 conflictswith and risks being interpreted by some states as releasingthem from any obligation to practice reasonable and equi-table utilization of aquifers; the idea of full sovereignty over aresource may lead a state to believe it need not take into con-sideration the water requirements of and impacts on otherstates.161

Although the balance between equitable utilization ofwaters and the obligation not to cause significant harm toother states caused friction in the drafting of the BerlinRuleS 62 and may have contributed to the international com-munity's failure to officially adopt the Watercourses Conven-tion, Article 6 of the U.N. Draft Aquifer Articles repeats theobligation that in utilizing aquifers states should take "allappropriate measures to prevent the causing of significantharm."'16 Furthermore, that obligation is now extended to"activities other than utilization of a transboundary aqui-fer or aquifer system."'16 When significant harm is caused,states are obliged to take "all appropriate response measuresto eliminate or mitigate such harm," though they are to doso while "having due regard for the provisions of articles 4and 5,"165 which provide for equitable and reasonable utili-zation.' 66 Yet, the requirement in the Watercourses Conven-

154. Watercourses Convention, supra note 61, art. 6.155. Draft Aquifer Articles, supra note 138, art. 5(b).156. Id. art. 5(1)(d).157. Id. art. 5(1)(f).158. Id. art. 5(1)(i).159. See supra notes 141-143, 153-158, and accompanying text.160. Id art. 5(2).161. See McCaffrey, Current Developments, supra note 147, at 291.162. See supra text accompanying notes 72-76.163. Draft Aquifer Articles, supra note 138, art. 6(1) ("Aquifer States shall, in utiliz-

ing transboundary aquifers or aquifer systems in their territories, take all ap-propriate measures to prevent the causing of significant harm to other aquiferStates or other States in whose territory a discharge zone is located.").

164. Id. art. 6(2).165. Id. art. 6(3) (alteration to the original). Once again, the tension between utili-

zation and protection of the resource was left unresolved.166. See id. arts. 4-5.

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tion to discuss compensation "where appropriate" 67 has beeneliminated.16 1

In Article 7 of the U.N. Draft Aquifer Articles, the partiesare once again told to cooperate based on the principles ofsovereignty and good faith dealings, but sustainable develop-ment has been added as one of the bases on which to cooper-ate."' However, the Watercourses Convention's requirementto attain "adequate protection" of the aquifers' was low-ered to a standard of "appropriate protection" in the U.N.Draft Aquifer Articles."'7 Perhaps as a balance, the U.N.Draft Aquifer Articles state that the parties "should establishjoint mechanisms of cooperation," 72 which is slightly stron-ger than the Watercourses Convention's suggestion that thestates "may consider" establishing such a mechanism. 73 TheU.N. Draft Aquifer Articles also use strong "shall" languageconcerning the establishment, "wherever appropriate[,]" of ajoint management mechanism for managing transboundaryaquifers or aquifer systems."'

Thus, the U.N. Draft Aquifer Articles produced by theILC follow and repeat many of the concepts found in ear-lier attempts to codify or create methods and perspectivesfor nations to share groundwater. None of the prior attemptsto craft a model for managing groundwater has been widelyaccepted by the international community, and the U.N.Draft Aquifer Articles appear destined for nothing morethan academic significance. The conflict between the prin-ciple of equitable and reasonable utilization and that of ade-quate protection remains unresolved; the U.N. Draft AquiferArticles added its own voice to the conflict by assigning to allnations exclusive sovereignty over water that lies and flowsunder their borders and rejecting the view that groundwateris the common heritage of mankind. The concept of regionalmanagement of aquifers has been retained, but only as modi-fied by the principle of absolute and exclusive sovereignty.

H. Customary International Water Low According tothe IC/

Only one decision of the ICJ has mentioned the customarylaw of transboundary waters,'75 the 1993 case concerningthe Gabaikovo-Nagymaros Project, in which Hungary andSlovakia brought a dispute before the court regarding their1977 agreement to dam parts of the Danube River to allowfor hydroelectricity, improved navigation, and reduced flood-

167. Watercourses Convention, supra note 61, art. 7(2).168. See Draft Aquifer Articles, supra note 138, art. 6.169. Id. art. 7(1).170. Watercourses Convention, supra note 61, art. 8(1).171. Draft Aquifer Articles, supra note 138, art. 7(1).172. Id. art. 7(2).173. Watercourses Convention, supra note 61, art. 8(2).174. Draft Aquifer Articles, supra note 138, art. 14.175. See Stephen Stec & Gabriel E. Eckstein, Of Solemn Oaths and Obligations:

The Environmental Impact of the ICJ] Decision in the Case Concerning theGabdikovo-Nagymaros Project, 8 Y.B. INT'L ENv-rTL. L. 41, 42, 45-46 (1997).In April 2010, the ICJ rendered another opinion concerning internationalwaters, but that case was decided purely on treaty grounds, and customarylaw was not discussed. Pulp Mills on the River Uruguay (Arg. v. Uru.), Judg-ment, 1 267-281 (Apr. 20, 2010), available at http://www.icj-cij.org/docketdfiles/I 35/15877.pdf.

ing along the banks of the river.'7 6 In 1989, in response tomounting concerns among its populace about the environ-mental impact of the project, Hungary suspended its workon the project and, in 1992, terminated the agreement.'7 7

Because two of the three segments of the project were nearlycompleted when Hungary suspended its work, Slovakia con-tinued to finalize the dams and barrages.' The parties filedclaims against one another, with Slovakia complaining thatHungary was not entitled to terminate the treaty and Hun-gary complaining about Slovakia's continued work on theDanube and its ecological impact.'7 9

Since the flow of the Danube was significantly reduced bythe dams and barrages and resulted in a severe reduction ingroundwater supplies and the navigability of the river, Hun-gary cited a state of ecological necessity as the rationale for itsaction.8 o The court ruled that in breaching the treaty Hun-gary did not give up its right to an equitable and reasonablesharing of the water resources.'"' The ICJ noted a 1929 rulingof the Permanent Court of International Justice in the RiverOder case that mandated a "perfect equality" in all uses of anavigational waterway and declared that a "community ofinterest" in a river becomes a "common legal right."8 2 The ICJseemed to view the Watercourses Convention as embodyingcustomary law by stating that the Watercourses Conventionis evidence that international law has now extended thoseconcepts to non-navigational uses of waterways.'8

Later in the opinion, the Court cited the WatercoursesConvention again in support of an established standard forequitable and reasonable use of water resources and a duty tocooperate in the protection and development of the water-course.'8 4 In adopting these principles the court rejected thenotion of a state's absolute sovereignty over transboundarywaters within its borders, an interpretation which is furthersupported because neither claimant used the notion of sover-eignty in presenting its case.'8 5 The ICJ also noted that newnorms and standards concerning environmental laws hadbeen established in the prior two decades, and that thesenorms and standards must be given proper weight when con-sidering the reasonableness of both new and old activities.'8 6

Regarding another precept of international environmentallaw-the precautionary principle-the court noted thatthe parties had agreed on the need "to take environmentalconcerns seriously and to take the required precautionarymeasures . . . ."187

Applying these principles, the ICJ held that Slovakia, bycontinuing the work of damming the river, deprived Hun-

176. Gabaikovo-Nagymaros Project (Hung./Slovk.), Judgment, 1997 1.C.J. 7, 15(Sept. 25), available at http://www.icj-cij.org/docket/files/92/7375.pdf [here-inafter ICJ Gabeikovo Judgment].

177. Id. 1 22.178. See id 73.179. Id. at 15-16.180. Id. 40.18 1. Id. 78.182. Id 85.18 3. Id.184. Id. 147.185. McCaffrey, Current Developments, supra note 147, at 288.186. ICJ Gabeikovo Judgment, supra note 176, 140.187. Id. 1 113.

48 Winter 2011I


gary of its right to an equitable and reasonable share of theDanube's waters, and that Slovakia had thus "fail[ed] torespect the proportionality which is required by internationallaw."' 8 The court ultimately held that each party was liableto pay compensation to the otherJ?'

In addition to its discussions on the state of customarywater law, the Gabeikovo-Nagymaros case was notable for anumber of other reasons as well. First, the parties themselvesagreed that the precautionary principle applied to their dis-

pute, and the court's ruling can be read to support the polluterpays principle, even though water shortages, and not water

pollution, were at issue in the case. Second, the court recog-nized that environmental concerns are an essential interest ofany state and that those concerns can.be grounds to abrogatea treaty, but only if the claimant has not contributed to thoseconcerns.'90 In reaching its conclusions, the court took judi-cial notice of concepts included in the Watercourses Con-vention. The court's holding indicates that, in the absence ofdefined international law on a topic, it can turn to the writ-ings of legal experts-such as those in its sibling organizationthe ILC-for guidance and then declare those opinions tobe established customary law. Indeed, in Special RapporteurMcCaffrey's opinion, the fact that the ICJ referred to theWatercourses Convention only four months after its adop-tion is proof that the convention represents customary law.19'

Part II

Overutilization Under The Current System of Governance

As discussed above, a legal regime for administering and allo-cating the water in transboundary aquifers has yet to develop,despite several laudable attempts in the last few decades. Cus-tomary law on the topic has not yet settled on whether inter-national water law or international environmental law shouldhave priority, so the battle between reasonable utilization andadequate protection of the resource continues. Meanwhile,nations with the good fortune to have water hidden in thedeep rock formations under their borders have exercised theirright to full sovereignty over this resource, while negotiatingto include provisions supporting this philosophy in several ofthe draft conventions and articles.

Part II analyzes the systems in place for governing fossilaquifers and how nations have chosen to utilize fossil watersin the absence of any controlling international law. Althougha number of fossil aquifers have been identified, this Articleaddresses only the six that are best known. Three are entirelydomestic: the deeper of several aquifers lying under the North

188. Id. 85.189. Id. g 152.190. Id. 52.191. Steven C. McCaffrey, The 1997 U.N. Watercourses Convention: Retrospect

and Prospect, 21 PAc. McGEORGE GLOBAL Bus. & DEV. L.J. 165, 170 (2008)[hereinafter McCaffrey Watercourses Convention Perspective]. In further sup-port of his contention that the Watercourses Convention represents customarylaw, Professor McCaffrey cites its influence in the negotiations of treaties suchas the 2000 Southern African Development Community ("SADC") RevisedProtocol, the Senegal River Water Charter, and the Nile River Basin Coopera-tive Framework Agreement. Id. at 171. ,

China Plain, a set of fossil aquifers in Saudi Arabia, and theOgallala Aquifer system in the central United States. Theother three fossil aquifers that will be discussed are shared bytwo or more countries: the Nubian Sandstone Aquifer Sys-tem underlying Libya, Sudan, Egypt, and Chad; the Qa-DisiAquifer underlying Jordan and Saudi Arabia; and the Conti-nental Interclaire Aquifer which underlies Libya, Algeria andTunisia.

Turning first to the entirely domestic aquifers, the fos-sil aquifers in the North China Plain, which are part of theNorth China Plain Quaternary Aquifer System, are beingrapidly depleted to serve agricultural needs.192 the NorthChina Plain Quaternary Aquifer System consists of fouraquifers, two of which are shallow and thus are currentlyrecharging, and two of which are fossil aquifers containingwaters deposited up to 10,000 years ago.'93 The Yellow Riverformerly supplied the water needed to grow crops, but itsoveruse and depletion led to a search for additional watersources.9 4 The two shallow aquifers were tapped first; whenthat source proved to be inadequate, the deeper fossil aquiferswere called into service.'95 The plain wheie the aquifers lieproduces half of China's wheat and a third of its corn crop,which explains the critical need for water.'9

Half of the water in China's fossil aquifers is estimatedto have been withdrawn in the twentieth century and, atthe current rate of withdrawals, the accessible water willbe depleted by 2035, with some localities losing their watersupplies fifteen years earlier.'97 Indeed, according to a 2001survey conducted by the Chinese Geological Environmen-tal Monitoring Institute, the water level in the fossil aqui-fer lying under the Hebei Province in the northern plainwas dropping at an annual rate of almost three meters andeven faster under some cities.'" Such excessive withdrawalsfrom the underground geological formations have caused animbalance in subterranean forces and pressures that have pro-duced widespread land subsidence!" A World Bank reportpredicts "catastrophic consequences for future generations"unless China's usage of water can be brought in line with itssupplies. 2 00

The Saudi fossil aquifers, presently covered by desert,are one-sixth the size of the Ogallala aquifer and have heldtheir waters for up to 30,000 years, dating back to a timewhen there was more moisture on the surface level. 20

1 Thewaters in these fossil aquifers are being withdrawn at a furi-

192. STEVEN SOLOMON, WATER: THE Epic STRUGGLE FOR WEALTH, POWER ANDCIVILIZATION 434 (2010).

193. HAN ZAISHENG, ALLUVIAL AQUIFERS IN NORTH CHINA PLAIN 1-3 (2006),available at http://www.brgm.fr/brgm/aih/fichier/actes/hemel-p5_49.pdf

194. SOLOMON, supra note 192, at 434.195. Lester Brown, Aquifer Depletion, THE ENCYCLOPEDIA OF EARTH (Jan. 23,

2010), http://www.eoearth.org/article/Aquifer-depletion.196. SOLOMON, supra note 192, at 434.197. Id. at 435.198. Brown, supra note 195. In a decade, village wells in Hebei province have gone

from depths of 20 to 30 meters to 120 to 200 meters to find clean water. SeePETER H. GLEICK ET AL., THE WORLD's WATER 2008-2009: THE BIENNIAL RE-

PORT ON FRESHWATER RESOURCES 86 (2009).199. Zaisheng, supra note 193, at 3.200. Brown, supra note 195.201. Solomon, supra note 192, at 413.

Winter 201 1 49


ous pace and provide half the domestic needs for Saudi citiesand seventy percent of the agricultural requirements of thedesert kingdom. 20 2 By 2005, sixty percent of the renewableand fossil aquifers in Saudi Arabia had been depleted of theirwater. 203 There are estimates that irrigated agriculture willdisappear from Saudi Arabia in the next decade as a result ofaquifer depletion. 204

At a recharge rate of only half an inch per year, the half-dozen aquifers comprising the Ogallala Aquifer system,which runs deep beneath Nebraska, western Kansas, theOklahoma Panhandle, northwest Texas, and portions ofSouth Dakota, Wyoming, Colorado, and New Mexico, qual-ify as fossil aquifers. 20 5 It was water from the Ogallala Aquiferthat turned the Dust Bowl of the 1930s into the Farm Beltof the 1970s. 206 As discussed earlier, 207 the Ogallala Aqui-fer is being rapidly depleted for those agricultural purposesthat gave the Farm Belt its name. At the height of extractionin the 1970s, when more than 66,000 wells drank day andnight from the Ogallala in West Texas alone,208 the annualoverdraft from the Ogallala was equal to the annual flow ofthe Colorado River (fourteen million acre-feet), 209 allowingOgallala water to support forty percent of American cattle210

and fifteen percent of the nation's wheat, corn, cotton, andsorghum. 2 11 As producer of seventy-five percent of the wheatsold on the world market, the United States was, in a sense,exporting Ogallala water around the globe. 2 12

Of course, this unsustainable practice could not last for-ever. Beginning in the Texas panhandle in 1970, wells tap-ping the Ogallala started to run dry.213 Today, more thantwenty-five percent of the aquifer under Texas, Oklahomaand Kansas has been depleted, 21 4 and Texas and Kansas areexpected to exhaust their shares of the Ogallala between 2020and 2030.215 When the Ogallala's fossil waters are depleted,the Farm Belt will once again suffer intense water shortagesreminiscent of the Dust Bowl, 2 16 and the country will have tolook elsewhere to meet its agricultural needs.

Turning to the shared aquifers, the Nubian SandstoneAquifer System ("NSAS") is the largest fossil aquifer in theworld and extends over two million square kilometers, under-lying all of Egypt west of the Nile, all of eastern Libya, andmuch of northern Chad and Sudan.217 The NSAS consists of

202. Id. at 414. According to UNESCO, non-renewable groundwater suppliedsixty-six percent of the Saudi national water.needs in 2000. See UNESCO,NoN-RENEWABLE GROUNDWATER RESOURCES, supra note 12, at 64.

203. Solomon, supra note 192, at 414.204. Brown, supra note 195.205. SoLOMoN, supra note 192, at 345; see also Pearce, supra note 3, at 59.206. Stengel et al., supra note 18.207. See id. at 2-3.208. MARC REISNER, CADILLAC DESERT 437 (1986).209. Id at 438.210. Solomon, supra note 192, at 345; Reisner, supra note 208, at 437.211. Solomon, supra note 192, at 345, 347.212. Pearce, supra note 3, at 60.213. Id. at 60.214. Id215. Solomon, supra note 192, at 348.216. See Pearce, supra note 3, at 59-60.217. The 37 Great Aquifer Systems of Earth: Solution to Global Drought, Biot Report

No. 675, SUBURBAN EMERGENCY MGMT. PROJECT (Dec. 28, 2009), http://www.semp.us/publications/biotreader.phpBiotlD=675.

two aquifer systems: the Nubian Aquifer System ("NAS"),which is largely unconfined, and the Post-Nubian AquiferSystem ("PNAS"), which is bounded. 218 The NSAS containsthe equivalent of at least 500 years of Nile River flow. 2 19 TheNSAS aquifer waters, some of which are estimated to havefallen between 20,000 and 1 million years ago, were dis-covered in Libya during a period of oil exploration in the1950s. 220

In the early 1970s, Libya and Egypt began a process ofcooperation regarding the NSAS, and in 1992 the JointAuthority for the Management of the NSAS System ("JointNSAS Authority") was formed. Sudan joined the NSAS in1996, followed by Chad in 1999.221 Given the magnitudeand importance of the NSAS, a consortium of agencies andgroups formed the IAEA/UNDP/GEF Nubian Project in2006. Participants in the project include the U.N. Develop-ment Programme ("UNDP") and the Global EnvironmentFacility ("GEF") as the implementing agencies; the Inter-national Atomic Energy Agency ("IAEA") as the executingagency, the lead technical agency on the scientific compo-nent, and the principal co-funding agency; UNESCO andits partners in the Internationally Shared Aquifer ResourcesManagement ("ISARM") initiative as co-funding and coop-erating agencies; the NSAS countries; and the Joint NSASAuthority as the lead regional institution.222 Thus far, theactivity of this plethora of agencies and organizations hasbeen limited to discussions on how to proceed with gather-ing information, although a framework for management andutilization of the NSAS is envisioned. 223

Meanwhile, Libya has proceeded with the Great Man-made River Project, which used oil revenues to construct a2000-mile system of "subway-sized tunnels" to carry waterfrom the NSAS and other aquifers to Tripoli and other desti-nations on the Mediterranean Coast.224 Although UNESCOpredicts that the NSAS has enough reserves to support with-drawals for 50 to 100 years, 22 5 the IAEA, which is normallyoccupied with nuclear energy and weaponry, is concernedthat the vast NSAS will be too depleted to support unsus-tainable water-rich lifestyles in the desert. 22 6

The Qa-Disi Aquifer is suffering a fate similar to all theother fossil aquifers discussed, with Saudi Arabia and Jordan

218. UNESCO: NON-RENEWABLE GROUNDWATER RESOURCES, supra note 12, at75, 78. The PNAS lies under only Libya and Egypt.

219. Cara Wood, The Water Is Ancient, The Secrets Are Many: IAEA, Partners HelpCharacterise Massive Water Source Under Sahara Desert, Int'l Atomic EnergyAgency (Mar. 22, 2010), http://www.iaea.org/NewsCenter/News/2010/nu-bianaquifer.html.

220. The 37 Great Aquifer Systems of Earth: Solution to Global Drought, supra note217.

221. Ahmed Khatar, NAT'L WATER RESEARCH CTR., Transboundary and LocalAqui-fer Systems Technical Workshop: 7he Nubian Aquifer Project 7 (2009), availableat http://www.iwlearn.netdabt-iwlearnlevents/iwc5/iwc5_presentations/khat-er iwc5_nubian.pdf.

222. INT'L ATOMIC ENERGY AGENCY, U.N. DEv. PROGRAM, GLOBAL ENVT FA-

CILrTY, NUBIAN SANDSTONE AQUIFER SYSTEM, Project Implementation Plan(2006), available at http://www-naweb.iaea.org/napclih/documents/Nubian/Nubian%20PIP%20-%20mayl 107.pdf.

223. Id. at 12-13.224. Solomon, supra note 192, at 415.225. UNESCO: Non-Renewable Groundwater Resources, supra note 12, at 32.226. Wood, supra note 219.

50 Winter 2011I


each competing to drain the aquifer before the other can.227

This aquifer lies under southern Jordan and northwest-ern Saudi Arabia, and its waters accumulated 40,000 yearsago. 228 By the 1990s, Saudi Arabia was extracting nine timesas much water as Jordan, 2 2 9 and in 1992 the Jordanian Miin-ister of Agriculture accused the Saudis of overextraction, butthe Saudi government did not respond to the accusation.230

Using their vast oil wealth, the Saudis are progressing withconstruction of desalination plants while continuing to with-draw water from the domestic aquifers under their own landas well as from the Qa-Disi Aquifer.231 Jordan, one of the dri-est countries on earth, has no comparable financial resources,and it has begun to drain the aquifer to support the populacein its capital Amman. As one author puts it, no matter whathappens, "the aquifer seems doomed."232

As stated earlier, the Continental Intercalaire Aquifer,also known as the Intercalaire, lies under Libya, Algeria,and Tunisia. Another deep aquifer, the Complex TerminalAquifer, also lies under the same three countries, but there issome disagreement about whether it is a fossil aquifer.233 Thetwo aquifers are referred to collectively as the North WesternSahara Aquifer System ("NWSAS"), or the Systime Aquiferedu Sahara Septentrionale ("SASS"), and the three countrieswith claims to the NWSAS have begun sharing informationand conducting studies to determine the characteristics ofthe aquifers and their capacities.234 As a result of increasingexploitation of the aquifers over the past twenty years, degra-dation of the groundwater in the aquifers is already occurringin the form of salination and the disappearance of artesianflows. 235 Consequently, calls for a joint management systemare being heard. 236

Part III

A. Water as a Common Resource

The current system of fossil water allocation and use-inwhich the nation lying above the aquifer has full sover-eignty over its groundwater resources-has led to rampant

227. Pearce, supra note 3, at 62.228. GREG SHAPLAND, RIVERS OF DiscoRD: INTERNATIONAL WATER DISPUTES IN

THE MIDDLE EAST 148 (1997).

229. Id.230. Id. at 149.231. Pearce, supra note 3, at 61-62.232. Id.233. Compare Krishna and Salman, supra note 104, at 181, with Gabriel Eckstein,

Commentary on the U.N. International Law Commission' Draft Articles on theLaw ofTransboundary Aquifers, 18 COLO. J. INT'L ENVL. L. & POL'Y 537, 555(2007).

234. Mustapha Besbes et al., Conceptual Framework of the North Western SaharaAquifer System, in Managing Shared Aquifer Resources in Africa 163 (Bo Ap-pelgren ed., Isarm-Africa, 2002), available at http://www.isarm.net/dynamics/modules/SFILO I 00/view.php?filIld= 192.

235. UNESCO: Non-Renewable Groundwater Resources, supra note 12, at 69. Anartesian flow results where underground pressures force groundwater to flowunder and sometimes to the surface. See Thomas Harter, Div. OF AGRIC. ANDNATURAL RES., UNIV. OF CAL., REFERENCE SHEET No. 11.3, Water Well Design

and Construction 1 (2003), available at http://groundwater.ucdavis.edu/Publi-cations/HarterFWQFS_8086.pdf.

236. See UNESCO: Non-Renewable Groundwater Resources, supra note 12, at68-74.

and uncontrolled groundwater use that, in most cases, willcause the aquifer to be functionally depleted in merely afew decades. Part I of this Article demonstrates a gradualevolution of theories concerning groundwater over severaldecades, each one building on prior assumptions regardingthe state of the law and practice. Thus, the right of a state toreasonable use of waters flowing through and lying under itsborders has been preserved through all of the groundwaterpronouncements. The corollary to reasonable use-sovereignrights over water lying under the borders of a state-has logi-cally been preserved as well.

This struggle between international water law, with itsparochial tenets of ownership, and international environ-mental law, with its broader scope of protection, has yet tobe resolved.2 37 Other less controversial ideas that developedduring the course of debates on surface waters and aquifersinclude proposals for a system of water management basedon those waters flowing throughout a basin area and pro-posals for sharing information regarding the resource amongaffected states.2 38 However, the sovereign right of a state towaters running through or under its jurisdiction has beenviewed as sacrosanct. 239

This line of declarations, conventions, and draft treatiespertaining to water resources has consistently presented andpreserved the same concepts, yet the conventions and drafttreaties have failed to achieve a critical mass of acceptance,much less universal approval. 240 Nations are still anchored intheir assertion of sovereignty over a resource that will becomeincreasingly critical. 24 1 If numerous harmonized attempts todevelop a system for sharing groundwater have not foundwide acceptance in the international community, perhapsa different point of view should be introduced and testedbefore groundwater suffers a fate analogous to a tragedy ofthe commons. Although some nations will object to the con-cept, it might be wise to consider whether the principle ofsovereignty over groundwater results in optimal use as theworld comes to grip with sharing resources on a global scale.

Fossil aquifers, in particular, should be subjected to a freshlook because they are by definition not connected with thesurface in a way that would allow for meaningful recharge.The water in fossil aquifers was put in place thousands andsometimes millions of years ago, and, for the most part, theresource can only productively be reached from the surfaceby artificial means such as drilling.242 If the connection offossil aquifers to the surface is so limited, one could arguethat they should not automatically be deemed the propertyof the state that happens to lie over them. If we are to proposeshattering the fundamental tenet of international law that astate has sovereignty over everything from the surface of itsterritory to the center of the earth, what should replace it?

Hugo Grotius, the seventeenth century scholar who iswidely regarded as the father of international law, viewed

237. See, e.g., Water Resources Committee Dissenting Opinion, supra note 72.238. Watercourses Convention, supra note 61.239. Draft Aquifer Articles, supra note 138.240. Statute of the International Court ofJustice, supra note 34.241. Rio Declaration, supra note 45.242. UNESCO, NON-RENEWABLE GROUNDWATER RESOURCES, supra note 12.

Winter 201 1 51I


international law as being derived from natural laws thathave their basis in nature and thus are common to everyoneeverywhere.243 If we accept Grotius' natural law theories ofnormativity,244 there seems to be nothing more fundamen-tally natural and compellingly moral than equitable sharingof a resource that is vital to all terrestrial life on the planet.

Although he acknowledged the status of the principle ofreasonable use in international water law, the water law pioneerJulio Barberis noted that the principle is limited by a prohibi-tion against harming the territory of neighbors. 245 Barberisalso recognized that groundwater is a natural resource thatmight be shared among nations under some circumstanceS246

and agreed with the text of the 1967 European Water Charterthat states "[water knows no frontiers; as a common resourceit demands international co-operation."2 47 Although the ideaof groundwater as a shared natural resource was consistentlyrejected by some of the states involved in construction of theU.N. Draft Aquifer Articles, 248 we should not consider theirparochial and self-serving positions to represent the onlyviewpoints.

Barberis listed two ways in which natural resources can beshared. The first category consists of natural resources thatlie outside the territory of any state. Those resources that canbe considered to be res communis, or belonging to everyone,include the moon and other planetary bodies beyond theearth, and the seabed that is outside the territorial waters ofany state.249 The other category concerns those resources thatlie across boundaries and thus are shared by two or morestates.250

If we accept that groundwater can be considered a sharednatural resource, and further accept that fossil aquifers, hav-ing a limited connection to surface soils, lie outside the terri-tory of any state and thus are beyond sovereign claims, thenwe can further postulate that fossil aquifers should be declareda shared natural resource. As a shared natural resource fossilaquifers would then be subject to the joint management ofall states, and withdrawals of their waters would not be thesole purview of a single nation, or even two or three nations.

Another argument in favor of giving fossil aquifers specialtreatment as a common resource stems from the concept oferga omnes. Erga omnes is a legal principle whereby obliga-tions are owed to the global community as a whole. 251 Whenapplied to natural resources, erga omnes can be interpretedto mean that states have rights in those resources regardless

243. See MURPHY, supra note 33, at 22-23.244. This theory is premised on the notion that "moral, political and legal norms

are all based on laws derived from or supplied by nature." John Miller, HugoGrotius, STANFORD ENCYcLOPEDIA OF PHILOSOPHY, Dec. 16, 2005, availableathttp://plato.stanford.edu/entries/grotius/#NatLaw.

245. JULIO BARBERIS, Food and Agric. Org. of the U.N., LEGISLATIVE STUDY No.

40, INTERNATIONAL GROUNDWATER RESOURCES LAw 48,(1986).

246. Id. at 23.247. Id. at 27.248. Rep. of the Int'l Law Comm'n, at 124, 56th Sess., May 3-June 4, July 5-Aug.

6, 2004, U.N. Doc. A/59/10; GAOR, 59th Sess., Supp. No. 10 (2004).249. Barberis, supra note 245, at 23.250. Id251. Coalter G. Lathrop, Finding the Right Fit: One Design Element in the Interna-

tional Groundwater Resource Regime, 19 DUKE J. COMP. & INT'L L. 413, 428(2009).

of their direct relationship to them, and that all states havea duty to protect the resource from serious harm and forthe benefit of the global community. 252 Environmental lawscholar David Freestone made the following case for treat-ing transboundary groundwater as giving rise to rights andobligations erga omnes:

Exploitation ofscarce, transboundary groundwater resourcescan no longer be seen as an issue exclusively within the

jurisdiction of the State under the territory of which theseresources extend. For the vast continental groundwaterresources ... . there can be argued to be obligations owederga omnes-they are resources of international concern.253

At the present moment, with aquifers of all types beingdrained at unsustainable rates and with annual global popu-lation growth of 83 million people placing increasing stresson the groundwater resources, 2 54 protecting aquifers fromfurther depletion would seem to be an obligation owed tothe global community. If the prediction that 1.8 billion peo-ple will live with severe water scarcity within fifteen years255

comes true, an obligation arises for the human species to usewater in sustainable ways to preserve as much as possible forfuture generations. Furthermore, with as many as 126,000animal species living in the earth's freshwater lakes, swamps,and rivers, 25 6 humans also have a moral obligation to sharewater with other ecosystems. Protection of fossil aquifers,whose waters were put in place millenia ago and from whichany withdrawals are largely unsustainable, 257 must surelyqualify as an erga omnes obligation to all living things. Ifrights to water stored in fossil aquifers extend to the globalcommunity, all nations would have an interest in the watersof the aquifers and would have a right to have their voicesheard regarding any withdrawal or usage. Similarly, thosenations with fossil aquifers lying under their borders wouldhave an obligation to protect the aquifers from unauthorizedwithdrawals and, more critically, from pollution that couldlead to contamination of the waters.

One may begin to ask why fossil aquifers, with structuressimilar to those containing other natural resources such asoil and gas, 258 should be blessed with special treatment. Whyshouldn't the waters in these fossil aquifers fall under thewell-established regimes for oil and gas? Why shouldn't thewaters be ruled by the law of capture, 259 which grants sov-ereignty to the nations lying above the deposits and allowswithdrawals to be determined on a first-come, first-servedbasis? The answer for the differentiation in treatment lies inthe purpose and use of the resources.

252. Id253. David Freestone, International Environmental Law: Principles Relevant to Trans-

boundary Groundwater, in Groundwater: Legal and Policy Perspectives 191,202 (Salman M.A. Salman ed., 1999) (footnote omitted).

254. Barbara Kingsolver, Water is Life, NAT'L GEOGRAPHIC, April 2010, at 36, 52.255. Id. at 56.256. Douglas Chadwick, Silent Streams, NATL GEOGRAPHIC, April 2010, at 116,

118-19. -

257. See UNESCO: Non-Renewable Groundwater Resources, supra note 12, at13-17.

258. See supra text accompanying note 135.259. Eugene Kuntz, A Treatise on the Law of Oil and Gas § 4.1 (1964), available at

http://www.mccombs.utexas.edu/faculty/David.Spence/Rule-of-capture.doc.

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Oil and gas fuel the economy, power our vehicles, pro-vide heat and energy for our buildings, and serve as chemi-cal components for a wide variety of manufactured goods.Going without oil and gas would be highly inconvenientand uncomfortable, but humans and other creatures wouldsurvive. However, without access to fresh water land-basedplants and animals quickly perish. Even those organismsadapted for living in the desert require some minimal amountof water. As the Special Rapporteur to the U.N. Draft Aqui-fer Articles made clear, water is a vital resource without anysubstitute.2 60 Protection of fresh water resources should bea moral responsibility of all nations, not just for its use forhuman consumption, but also to nourish the plants and ani-mals that provide the biodiversity so critical to eco-systemsand all life systems.

In addition to natural law and erga omnes, other estab-lished principles in international environmental law supportspecial, communal treatment of fossil aquifers: the conceptsof common concern of humanity and common heritage ofmankind.

B. Common Concern of Humanity

Alexandre Kiss and Dinah Shelton succinctly described theideals supporting the principle that some issues are the com-mon concern of all of humanity:

[K]nowledge that the biosphere is the only known place inthe universe where life is possible led to the emergence ofanother universal value, protection of the human environ-ment as a common concern of humanity. The global envi-ronment, an interdependent ecological system, can only beprotected at the global level, making it a common concernfor all humanity. Transboundary and domestic environmen-tal issues that cannot be managed effectively by national orregional efforts also are common concerns. 261

When considering the unique and fragile nature of fossilaquifers, as well as the vital importance of their waters toall terrestrial life forms, one can easily support categorizingthese aquifers as a common concern of humanity. Nationswill most often be forced by parochial concerns to utilizenatural resources for the benefit of their own populace,which can often lead to severe depletion and even exhaustionof the resource. Domestic and even regional management offossil aquifers has not produced a system of governance thattakes into consideration other nations or even future genera-tions.26 2 Thus, it would seem that only a global system of gov-ernance will protect and preserve these freshwater systems,an idea that is developed further in this Section.

The 1972 Stockholm Declaration,263 considered to be theprogenitor of many of the environmental declarations and

260. SPECIAL RAPPORTEUR, Fourth Rep. on Shared Natural Resources: TransboundaryGroundwaters, at 5, INT'L LAW COMM'N, U.N. Doc. A/CN.4/580 (Mar. 6,2007) (by Chusei Yamada).

261. ALEXANDRE Kiss & DINAH SHELTON, INTERNATIONAL ENVIRONMENTAL LAW

32 (3rd ed. 2004).262. See infra Part II.263. Stockholm Declaration, supra note 39.

treaties to follow, is rife with statements that echo commonconcerns of humanity. Paragraph 6 of the preamble provides:

To defend and improve the human environment for presentand future generations has become an imperative goal formankind[;] a goal to be pursued together with, and in har-mony with, the established and fundamental goals of peaceand of world-wide economic and social development. 264

The first five principles of the Stockholm Declaration canalso be considered to reflect common concerns of humanity,even though not all of them express environmental concerns:

Principle 1Man has the fundamental right to freedom, equality andadequate conditions of life, in an environment of a qualitythat permits a life of dignity and well-being, and he bears asolemn responsibility to protect and improve the environ-ment for present and future generations. In this respect,policies promoting or perpetuating apartheid, racial segre-gation, discrimination, colonial and other forms of oppres-sion and foreign domination stand condemned and must beeliminated.

Principle 2The natural resources of the earth, including the air, water,land, flora and fauna and especially representative samplesof natural ecosystems must be safeguarded for the benefit ofpresent and future generations through careful planning ormanagement, as appropriate.

Principle 3The capacity of the earth to produce vital renewable resourcesmust be maintained and, wherever practicable, restored orimproved.

Principle 4Man has a special responsibility to safeguard and wiselymanage the heritage of wildlife and its habitat, which arenow gravely imperilled [sic] by a combination of adversefactors. Nature conservation[,] including wildlife[,J musttherefore receive importance in planning for economicdevelopment.

Principle 5The non-renewable resources of the earth must be employedin such a way as to guard against the danger of their futureexhaustion and to ensure that benefits from such employ-ment are shared by all mankind.265

These principles set forth a number of issues that may beconsidered the common interests of humanity, including pro-tection of the environment, elimination of racial discrimina-tion and oppression, safeguarding of natural resources andecosystems, conservation of wildlife, and wise stewardship ofnon-renewable resources. A clear relationship exists betweenthe preservation of fossil aquifers and Principle 5's reference

264. Id. at 3.265. Id at 5 (first and second emphasis added).

53Winter 201 1


to non-renewable resources, as fossil aquifers are non-replen-ishing and thus must be guarded from exhaustion in order topreserve them for the future.

According to Kiss and Shelton, acknowledgement thatprotection of certain parts of the planet is the common inter-est of humanity is found in the Antarctic Treaty System,266

which was inaugurated with the 1959 Antarctic Treaty26 7

and was later expanded with the 1980 Canberra Conventionon the Conservation of Antarctic Marine Living Resources("CCAMLR") 2 68 and the 1991 Madrid Protocol on Envi-ronmental Protection to the Antarctic Treaty ("MadridProtocol"). 2 69 The Antarctic Treaty begins with the statementthat "it is in the interest of all mankind that Antarctica shallcontinue forever to be used exclusively for peaceful purposesand shall not become the scene or object of internationaldiscord[,]" 2 70 and goes on to provide that the Antarctic maybe used for .scientific research, but not for military activi-ties such as establishing bases or engaging in nuclear test-ing.27' CCAMLR's preamble has similar statements *about"safeguarding the environment and protecting the integrityof the ecosystem of the seas surrounding Antarctica[,]" and"[b]elieving that the conservation of Antarctic marine liv-ing resources calls for international co-operation. 272 TheCCAMLR preamble also reflects the spirit of the AntarcticTreaty "that it is in the interest of all mankind to preservethe waters surrounding the Antarctic continent for peace-ful purposes only."273 The preamble of the Madrid Protocolfollows the Antarctic treaty and CCAMLR by stating "thatthe development of a comprehensive regime for the protec-tion of the Antarctic environment and dependent and associ-ated ecosystems is in the interest of mankind as a whole[,"and then goes further to "designate Antarctica as a naturalreserve, devoted to peace and science[.]" 274 Interestingly, theConvention on the Regulation ofAntarctic Mineral ResourceActivities ("CRAMRA") 275 a lengthy document that estab-lished a commission to ensure protection of the environmentduring any mining of minerals in the Antarctic region, wassigned but never entered into force. 2 76 Thus, Article 7 of theMadrid Protocol, which states that "[a]ny activity relatingto mineral resources, other than scientific research, shall beprohibited[,]" 2 77 remains the prevailing rule in the Antarcticregion.

266. Kiss & Shelton, supra note 261, at 32.267. Id.268. Id; Convention on the Conservation of Antarctic Marine Living Resources,

May 20, 1980, 19 I.L.M. 841 [hereinafter CCAMLR.269. Kiss & Shelton, supra note 261, at 32-33; Protocol on Environmental Protec-

tion to the Antarctic Treaty, Oct. 4, 1991, 30 I.L.M. 1455 [hereinafter MadridProtocol].

270. Multilateral Antarctic Treaty, Dec. 1, 1959, 12 U.S.T. 794, 795, T.I.A.S. 4780(1961).

271. Id.272. CCAMLR, supra note 268, pmbl.273. Id274. Madrid Protocol, supra note 269, at 1461.275. Convention for the Regulation of Antarctic Mineral Resource Activities, June

2, 1988, 27 1.L.M. 859 [hereinafter CRAMRA).276. Colin Deihl, Antarctica: An International Laboratory 18 B.C. ENvrL. AFF. L.

REv. 423, 424 (1991).277. Madrid Protocol, supra note 269, at 1464.

The nations of the world, therefore, formally recognize acommon concern of humanity in keeping the entire Antarc-tic free from militarization, allowing for scientific researchon the continent, and protecting the Antarctic environmentand ecosystem. One can argue that declaring an area of theplanet to be protected from development and depletion ismuch easier when there is no human population present tocompete for its resources and when no nation has an undis-puted claim to sovereignty over the land.2 78 However, thesystem that was put into place is an example of what can beaccomplished when nations agree to cooperate in achieving acommon goal and to refrain from undertaking certain activi-ties in a defined area.

The Antarctic Treaty System is not the only example ofcooperation among states to protect something deemed to bea common concern of humanity. The 1967 Treaty on Princi-ples Governing the Activities of States in the Exploration andUse of Outer Space, Including the Moon and Other Celes-tial Bodies ("Outer Space Treaty")2 79 was signed eight yearsafter the 1959 Antarctic Treaty and was heavily influenced byit.28 The preamble of the Outer Space Treaty "[r]ecogniz[es]the common interest of all mankind in the progress of theexploration and use of outer space for peaceful purposes[.]" 281

Article I declares that "[t]he exploration and use of outerspace, including the moon and other celestial bodies, shall becarried out for the benefit and in the interests of all countries,irrespective of their degree of economic or scientific develop-ment, and shall be the province of all mankind."282 Article IIeliminates any question of sovereignty over space by. statingthat "[o]uter space, including the moon and other celestialbodies, is not subject to national appropriation by claim ofsovereignty, by means of use or occupation, or by any othermeans."

283

The two primary players in the space arena at the time ofthe Outer Space Treaty, the United States and the Union ofSoviet Socialist Republics ("USSR"), each believed that thetreaty still gave them the right to determine who would ben-efit from their efforts in space, and thus did not impose oneither of them the obligation to share any of their extrater-restrial bounty with any other nation.284 However, no oneargues with the proposition that the Outer Space Treatyidentifies space as res communis-that is, space belongs toeveryone, collectively, and is not res nullius, whereby the voidof ownership would allow for claims of title and sovereigntyby everyone.285

278. For an interesting history of the disputed claims of sovereignty over the Antarc-tic region going back to the early to mid 20th century, see Jonathan D. Weiss,Comment, The Balance ofNature and Human Needs in Antarctica: The LegalityofMining, 9 TEMP. INT L & COMP. L.J. 387, 392-93 (1995).

279. Treaty on Principles Governing the Activities of States in the Exploration andUse of Outer Space, Including the Moon and Other Celestial Bodies, doneJan.27, 1967, 18 U.S.T. 2410 [hereinafter Outer Space Treaty].

280..See Eric Husby, Comment, Sovereignty and Property Rigis in Outer Space, 3 J.INT'L L. & PRAc. 359, 362 (1994).

281. Outer Space Treaty, supra note 279, pmbl.282. Id art. I.283. Id. art. 11.284. Husby, supra note 280, at 364.285. Id. at 364-65.

54 Winter 2011I


The principle of the common concern of humanity is alsoembodied in the 1979 Bonn Convention on the Conserva-tion of Migratory Species of Wild Animals, the Conventionon the Conservation of European Wildlife and Natural Hab-itats, the World Charter for Nature, the 1992 Convention onBiological Diversity, and the U.N. Framework Conventionfor Climate Change.286 While the concept of common con-cern of humanity cannot yet be said to represent custom-ary international law, and is still tempered with notions ofsovereignty, it represents an emerging and recognized trend.One can also argue that the waters contained in fossil aqui-fers qualify as a common concern of humanity. As globalfresh surface water is plundered and polluted, these reservoirswill be a critical source of freshwater for future generations ofhumans and other organisms. Fossil aquifers differ in charac-ter from the Antarctic and the moon, but the logic that drovethe community of nations to reach agreement on those twoareas can be extended to fossil aquifers as well-a recogni-tion that some resources are vitally important to all of us andthat concerted effort is required to preserve them.

C. Common Heritage of Mankind

Closely related to the concept of common concerns of human-ity is the idea that certain areas and resources should benefitfrom global protection, and usage of those resources shouldbe determined only by consensus of the global community;that is, these areas and resources are the common heritageof mankind.28 7 The notion that areas and resources can bethe common heritage of mankind evolved naturally from theconcept of common concern of humanity and was born in animpassioned speech to the U.N. General Assembly in 1967by Arvid Pardo, then the Permanent Representative of Maltato the United Nations.288 Pardo's plea that ocean resources beconsidered as "the common heritage of mankind"" 9 led tothe adoption of the Law of the Sea Convention ("LOSC").290

He explained his reasoning as follows:

The objective of the Maltese proposal was to replace theprinciple of freedom of the seas by the principle of commonheritage of mankind in order to preserve the greater partof ocean space as a commons accessible to the internationalcommunity. The commons of the high seas, however, wouldbe no longer open to the whims of the users and exploit-ers; it would be internationally administered. Internationaladministration of the commons and management of itsresources for the common good distinguished the principle

286. Kiss & Shelton, supra note 261, at 33-34.287. Christopher C. Joyner, The Concept of the Common Heritage of Mankind in

International Law, 13 EMORY INT L L. REv. 615, 620 (1999) (reviewing KEMELBAsAR, THE CONCEPT OF THE COMMON HERITAGE OF MANKIND IN INTERNA-TIONAL Law (1998)).

288. Press Release, U.N. Info. Serv., Dr. Arvid Pardo, Father of the Law of the SeaConference, Dies at 85, in Houston, Texas, U.N. Press Release SEA/1619 (July16, 1999).

289. Id.290. Id.

of common heritage from the traditional principle of thehigh seas as res communi. 29 1

References to the concept of the common heritage ofmankind abound throughout the LOSC. In the preamblewe find the following statement of intention, clearly showingthe overriding influence of the concept:

Desiring by this Convention to develop the principles embod-ied in resolution 2749 (XXV) of 17 December 1970 inwhich the General Assembly of the United Nations solemnlydeclared inter alia that the area of the seabed and ocean floorand the subsoil thereof, beyond the limits of national juris-diction, as well as its resources, are the common heritage ofmankind, the exploration and exploitation of which shall becarried out for the benefit of mankind as a whole, irrespectiveof the geographical location of States . 292

Article 125 allows landlocked states to have access tointernational waters to exercise their rights "relating tothe freedom of the high seas and the common heritage ofmankind."2 93 Further, the common heritage of mankindprinciple is explicitly mentioned in Article 136, which statesthat "[t]he Area," defined in Article 1 to mean "the sea-bedand ocean floor and subsoil thereof, beyond the limits ofnational jurisdiction," 294 "and its resources are the commonheritage of mankind."295 Article 137, titled "Legal status ofthe Area and its resources," clarifies the matter:

1. No State shall claim or exercise sovereignty or sovereignrights over any part of the Area or its resources, norshall any State or natural or juridical person appropri-ate any part thereof. No such claim or exercise of sover-eignty or sovereign rights nor such appropriation shallbe recognized.

2. All rights in the resources of the Area are vested inmankind as a whole, on whose behalf the Authorityshall act. These resources are not subject to alienation.The minerals recovered from the Area, however, mayonly be alienated in accordance with this Part and therules, regulations and procedures of the Authority.

291. L.F.E. Goldie, A Note on Some Diverse Meanings of 'the Common Heritage ofMankind, " 10 SYRACUSE J. INT'L L. & COM. 69, 86-87 (quoting Arvid Pardo,Law ofthe Sea Conference-What Went Wrong, in Managing Ocean Resources:A Primer 137, 139 (Robert L. Friedheim ed., 1979)).

292. U.N. Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397,398 [hereinafter LOSCI. LOSC was amended twelve years after its initialadoption in order to implement changes to Part XI, which established the Areawhose resources are deemed to be the common heritage of mankind. Agree-ment Relating to the Implementation of Part XI of the U.N. Convention onthe Law of the Sea, Annex § 2(3), adoptedon July 28, 1994, 1836 U.N.TS. 3.[hereinafler 1994 Implementing Agreement]. In this article, the term LOSCwill refer to the Law of the Sea Convention as amended by the 1994 Imple-menting Agreement. While the idea of a common heritage of mankind wasfirst articulated on behalf of developing nations in connection with the LOSCnegotiations, it was incorporated into the 1979 Moon Treaty three years priorto finalization of LOSC. Agreement Governing the Activities of States onthe Moon and other Celestial Bodies, opened for signature Dec. 5, 1979, 18I.L.M. 1434 (entered into force July 11, 1984).

293. Id. at 444.

294. Id. at 399.295. Id. at 446.

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3. No State or natural or juridical person shall claim,acquire or exercise rights with respect to the mineralsrecovered from the Area except in accordance with thisPart. Otherwise, no such claim, acquisition or exerciseof such rights shall be recognized.296

Article 140, titled "Benefit of mankind," develops the ideaeven further:

1. Activities in the Area shall, as specifically provided forin this Part, be carried out for the benefit of mankindas a whole, irrespective of the geographical locationof States, whether coastal or land-locked, and takinginto particular consideration the interests and needs ofdeveloping States and of peoples who have not attainedfull independence or other self-governing status recog-nized by the United Nations in accordance with Gen-eral Assembly resolution 1514 (XV) and other relevantGeneral Assembly resolutions.

2. The Authority shall provide for the equitable sharingof financial and other economic benefits derived fromactivities in the Area through any appropriate mecha-nism, on a non-discriminatory basis . .297

Other references in the LOSC to the common heritageor common benefit of mankind can be found in Article143, on "[m]arine scientific research[;]" Article 149, on "[a]rchaeological and historical objects;" Article 150, on "[p]olicies relating to activities in the Area;" Article 155, on "[t]he Review Conference [of the International Seabed Author-ity];" and Article 246, on "[m]arine scientific research in theexclusive economic zone and on the continental shelf."298

Further, in Article 311 the parties agree prospectively "thatthere shall be no amendments to the basic principle relatingto the common heritage of mankind set forth in article 136and.that they shall not be party to any agreement in deroga-tion thereof."299

Thus, in the LOSC we see the parties to the treaty will-ingly agreeing to cede sovereignty over resources that maybe garnered from an area of the ocean beyond just their

jurisdiction. The seabed contains minerals that would bringfinancial gain but no direct sustenance, yet nations werewilling to share the benefits deriving from those resourceswith other nations. The willingness to refrain from makingclaims of sovereignty in the LOSC goes one step further thanthe same willingness that was expressed in the Outer SpaceTreaty because many nations had the capacity to exert claimsof sovereignty over the high seas, whereas not many nationshad the capacity to launch vehicles into space.300 The agree-ment to declare the Antarctic free from the sovereignty of anynations had much more practical impacts because nationshad already begun arguing over their rights to the territory.30'However, nations were willing to relinquish whatever rights

296. Id.297. Id. at 447 (footnote omitted).298. Id. at 448, 450-51, 497-98.299. Id. at 519.300. See Husby, supra note 280, at 362.301. See Weiss, supra note 278, at 392-94, 396-98.

they may have had to the territory to preserve the land and itsresources for all of mankind. 30 2

Fossil aquifers, which contain life-giving waters, shouldbe granted the same status as the seabed, the moon, and theAntarctic, so that their freshwater resources may be preservedand shared by the global community for generations to come.Indeed, the waters in fossil aquifers can be viewed as beingeven more deserving of global protection and managementthan ocean, lunar or polar minerals, because without thesewaters land-based life forms could not survive. The -moneygained from selling minerals on the global market may bringfinancial returns to the exploiters and merchants, but with-out water to drink, those same exploiters and merchantswould wither and disappear far more quickly than their bankaccounts. If nations can agree on a global management sys-tem for minerals that are not vital to life, they should be evenmore compelled to treat water-especially water in systemsso weakly linked to the surface and thus outside their sover-eign control-as both the common concern of humanity andthe common heritage of mankind. Such global consciousnessand subordination of nationalistic concerns to the commongood would set the stage for a communal governance of fossilaquifers.

D. A Proposal for Aquifer Governance

If waters in fossil aquifers are the common heritage of man-kind, with the nations lying above those aquifers no lon-ger having exclusive claims of sovereignty over them, somemethod of governance must be developed to fill the void.Before designing such a method, it would be instructive toanalyze joint management mechanisms that have alreadybeen designed or implemented. The LOSC established theInternational Sea-Bed Authority ("ISA") to administer theresources in "the Area," as that term is defined in the Coh-vention.3 03 The Bellagio. Treaty, which was the culminationof the work of eminent water scholars, presented a proposalfor governance modeled after the International Boundaryand Water Commission that was put into place by the 1944United States-Mexico Water Treaty0 4 as a mechanism formonitoring and managing the transboundary waters betweenthe United States and Mexico.305 This Section compares theISA with the governing body proposed in the Bellagio Treatyin an effort to propose a solution for joint management offossil aquifers.

The LOSC devotes almost thirty articles30 6 to establishingthe ISA and describing its functions. The headquarters of theISA is in Jamaica, a developing, island nation, and all statesthat are parties to LOSC are automatically members of theISA.3 1

7 Article 157 sets forth the "nature and fundamental

302. See id. at 396-97.303. LOSC, supra note 292, art. 156, para. 1, art. 157, para. 1.304. Treaty on the Waters of the Colorado and Tijuana Rivers, and of the Rio

Grande, U.S.-Mex., art. 2, para. 2, Feb. 3-Nov 14, 1944, 3 U.N.TS. 313.305. Nicole Ries, 7he (Almost) All-American Canal: Consejo de Desarrollo Economico

de Mexicali v. United States and the Pursuit of Environmental Justice in Trans-boundary Resource Management, 35 ECOLOGY L.Q. 491, 500-01 (2008).

306. LOSC, supra note 292, arts. 156-83.307. Id. art. 156, paras. 2, 4.

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principles" of the ISA, which give it both express and inci-dental powers, grant equality to all members, and call forgood faith implementation:

L The Authority is the organization through which StatesParties shall, in accordance with this Part, organize andcontrol activities in the Area, particularly with a viewto administering the resources of the Area.

2. The powers and functions of the Authority shall bethose expressly conferred upon it by this Convention.The Authority shall have such incidental powers, con-sistent with this Convention, as are implicit in and nec-essary for the exercise of those powers and functionswith respect to activities in the Area.

3. The Authority is based on the principle of the sovereignequality of all its members.

4. All members of the Authority shall fulfil [sic] in goodfaith the obligations assumed by them in accordancewith this Part in order to ensure to all of them therights and benefits resulting from membership.30 s

The ISA structure is quite complicated, with an Assembly,a Council, a Secretariat, and an Enterprise.3 09 The cost ofthe Enterprise, which would have conducted the intendedactivities in the Area and managed transport, processing andmarketing of minerals taken from the Area, caused muchconcern among the parties.31o As a result, the 1994 Imple-menting Agreement, which amended the original LOSC,provided that no state or party would be responsible to fundany mine site or finance any Enterprise operations.311 Thus,the Enterprise remains essentially a theoretical solution tosharing of mineral resources in the seabed, but the designof its structure can still provide inspiration for solutions tosharing other resources.

The Assembly is comprised of one representative of eachmember of the ISA312 and has a broad range of powers andfunctions, including establishing general policies; electing theSecretary-General, members of the Council, members of theGoverning Board of the Enterprise and the Director-Generalof the Enterprise; setting up subsidiary organs; assessing con-tributions of the members; approving the Council's recom-mendations on policies and procedures regarding equitablesharing of the benefits derived from the Area; determiningthe amount of the equitable sharing; approving the budget;initiating studies to promote international cooperation andto encourage development of related international law; con-sidering particular problems of developing nations; and sus-pending membership. 13

The Council has only thirty-six members. Membershipon the Council is determined by a complex system thatchooses four representatives from nations that consume or

308. Id. art. 157.309. Id. art. 158.310. David Freestone, A Decade ofthe Law ofthe Sea Convention: Is It a Success?, 39

GEO. WASH. INT'L. L. REv. 499, 512 (2007).311. 1994 Implementing Agreement, supra note 292.312. LOSC, supra note 292, art. 159, para. 1.313. Id. art. 160.

import commodities derived from minerals in the Area, fourrepresentatives from nations that have large investments inmineral extraction activities in the Area, four representativesfrom nations that export minerals such as those found in theArea, six representatives from developing nations, and eigh-teen representatives chosen to ensure balanced geographicalrepresentation.' Landlocked, geographically disadvantaged,and coastal states are guaranteed representation.315 TheCouncil functions as the organizational arm of the ISA andis charged with supervising and coordinating implementa-tion of all matters within the jurisdiction of the ISA; it mayalso enter into agreements with other international organi-zations on behalf of the ISA. 3" To assist in carrying out itsduties, the Council has an Economic Planning Commissionand a Legal and Technical Commission, each composed offifteen members.317 The Secretariat branch is comprised ofthe Secretary-General, who serves as the chief administrativeofficer 18 and principal diplomat of the ISA, 319 and the ISAstaff.320 LOSC sets up a layered system of governance thatprovides for management representation by concerned par-ties and parties that might otherwise be underrepresented.Day-to-day management is left to a subset of the Council,and a separate technical committee is charged with manag-ing any extraction of minerals.

As discussed earlier,32 ' Article III of the Bellagio Treaty322

takes a different approach by establishing a Commission tomanage the transboundary aquifers that are agreed to fallunder its jurisdiction. The Commission is given a techni-cal staff to work with member governmentS32 3 and is spe-cifically authorized to "declare Transboundary GroundwaterConservation Areas, Drought Alerts, Drought Emergenciesand Public Health Emergencies, and to promulgate the cor-responding plans and Depletion Plans."324 The Commission'sdetermination that an area needs special protection throughclassification as a Transboundary Groundwater ConservationArea is final unless a member government objects within 180days.32 5 Once the Commission has formally declared an areato be a Transboundary Groundwater Conservation Area, theCommission must produce and submit to the member gov-ernments a Comprehensive Management Plan that similarlybecomes formally adopted if no member government objects

314. Id. art. 161, para. 1.315. Id. art. 161, para. 2. Article 70(2) of LOSC defines "geographically disad-

vantaged States" to mean "coastal States, including States bordering enclosedor semi-enclosed seas, whose geographical situation makes them dependentupon the exploitation of the living resources of the exclusive economic zonesof other States in the subregion or region for adequate supplies of fish for thenutritional purposes of their populations or parts thereof, and coastal Stateswhich can claim no exclusive economic zones of their own."

316. Id. art. 162.317. Id. art. 163, paras. 1-2.318. Id. art. 166, para. 3.319. Id. art. 169..320. Id. art. 167.321. See supra Part I.D.322. Bellagio Treary, supra note 30.323. Id. art. Ill, para. 2.324. Id. art. III, para. 3.325. Id. at 692 (presenting art. VII, 11 1-3).

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within 180 days. 326 Governments may assign the Commis-sion jurisdiction over other activities concerning the mem-bers' border regions, 327 and they collectively may refer othermatters to the Commission for investigation or action.328 Anindividual government, or a set of affected governments, mayrequest advice from the Commission on a matter concerninga particular border area.329

In the commentary to the Bellagio Treaty, Hayton andUtton clarify their intention that the parties to the treatymay utilize a "joint or international" organization thatalready exists to perform the functions assigned to the Com-mission, or the parties may use the framework outlined inthe treaty to create a new entity to function as the Commis-sion.3 30 Hayton and Utton also strongly recommend that theCommission have jurisdiction over both surface water andgroundwater, since "conjunctive management". would pro-duce the most cost-effective and efficient results. 331

In Article IV, the Commission is tasked with conduct-ing a biennial "review of the water quality and quantity con-trol measures taken within each Party's territory affectingthe border region." The parties are obligated to cooperate byproviding the Commission with information necessary toperform its review, and once the Commission has completedits review it must issue a report on its findings. 332 The par-ties are also responsible for issuing a biennial report on waterquality and quantity control measures undertaken in their

jurisdictions.333 The commentary states that the Commissionis not an enforcement agency, but serves to review the activi-ties and reports of the parties.334 One of the major functionsof the Bellagio Treaty Commission is maintenance.of thedatabase335 because, as Hayton and Utton note, "[t]here canhardly be anything more important in effecting internationalwater resources management than the factual basis requiredfor rational decision making."33 6 In Article X, the Commis-sion is authorized to make a proposal for the planned deple-tion of an aquifer over a calculated period of time,.but thatplan must be approved by the parties.

The LOSC system was designed to facilitate participationby the global community in decisionmaking related to theexploitation of resources and in sharing the benefits gainedfrom those resources, The Bellagio Treaty is intended to leavethe management of aquifer systems to those countries thatshare the water basin, but provides that the managementof the water basin be guided by science. One proposal for a

326. Id. at 695, 697 (presenting art. VIII, 11 1, 4). Interestingly, the language "allthe relevant factors" in article VIII, paragraph 3, of the Bellagio Treaty--de-scribing the factors that the Commission must take into consideration whenmaking allocations of water under a Comprehensive Management Plan-hasbecome nearly universally accepted language since the adoption of the HelsinkiRules in 1966. Id at 699.

327. Id. at 684 (presenting art. III, 4).328. Id (presenting art. Ill, 7).329. See id. (presenting art. III, 1 7).330. Id at 684-85.331. Id at 685.332. Id. art. IV, para. 2.333. Id. para. 3.334. Id at 687.335. Id. art. V.336. Id. at 688-89.

management system for fossil aquifers could combine aspectsof the two regimes.

This Article presents arguments for viewing the water con-tained in fossil aquifers as the common heritage of mankindbecause its limited connection to the surface should place itoutside the sovereign reach of any nation. The most difficultpart of achieving a global regime for fossil aquifers wouldobviously be convincing the nations under whose land theylie that a new system of sovereignty should be adopted andthat the water resources belong to the world community atlarge. From a practical standpoint, persuading those nationswith water under their lands to cede some or all of thosecurrent rights to less fortunate nations will require consider-able diplomacy and horse-trading. The current internationalsystem penalizes those who give up a current right withoutsome recompense in return and gives no reward for altruism.However, from a theoretical standpoint, one can postulate.that as globalization and telecommunications link nationsand their peoples more closely together, global consciousnessand action will be possible and necessary to address the watercrises we will face in coming decades. Nations lying atopfossil aquifers may have to be granted certain concessionsand benefits by the global community in order to convincethem to refrain from asserting sovereignty over fossil waters.However, assuming that the nations with current claimsover the aquifers could be convinced to eschew those claimsfor the benefit of all of mankind and nature, and that thosenations could also be convinced to allow access to the aqui-fers through their territories, certain structures could then beput into place.

Under the current system of world order, agreementsbetween nations take the form of treaties, and a treaty wouldcertainly be necessary to delineate the rights and obligationsof the parties sharing fossil waters. That treaty could be nego-tiated under the auspices of the United Nations or by an adhoc group. Since neither of the U.N. draft treaties concern-ing water has entered into force, one could argue that politi-cal will within the halls of the U.N. is lacking where waterissues are concerned and that an ad hoc group would there-fore be advisable. Indeed, an arrangement for sharing fossilaquifers could be tested on a regional basis first. The JointNSAS Authority is an attempt to allocate the fossil watersin the Nubian Sandstone Aquifer, but the water is onlyshared among those nations located atop the aquifer, thuspreserving the current notions of sovereignty. Further, whileLibya continues draining the aquifer with its Great Man-Made River Project, the Joint NSAS Authority has not evenreached agreement on gathering and sharing information. Inorder to balance science and equity, a treaty addressing fossilaquifers-whether global or regional-should include someor all of the aspects discussed in the following paragraphs.

The Bellagio Treaty was correct in placing a high value onthe science of hydrogeology, because a keen understandingof aquifers and water flows would limit the over-utilization,subsidence, and contamination that could doom an aqui-fer. Ideally, scientists would remain above the political frayand would be capable of rendering unbiased opinions on the

58 Winter 201 I


health and sustainability of aquifers based on measurementsand data. Therefore, a scientific committee similar to the Bel-lagio Commission should be established with noted expertsfrom various representative countries serving pre-determinedterms. Having pre-determined term limits for the committeemembers would help prevent voting blocks from forming andwould allow for fresh ideas and opinions to be presented tothe committee. This scientific committee should be given thepower to recommend to an executive committee when and towhat extent withdrawals should be made from the aquifers toaddress current demands, while not compromising the abil-ity of the aquifer to meet future needs. The scientific com-mittee could also, by the vote of a super-majority, overridewithdrawal requests made by the executive committee whenthose withdrawal requests would, in the opinion of the scien-tific committee, jeopardize the health or sustainability of theaquifer. There would, however, be no need for Bellagio-styleTransboundary Groundwater Conservation Areas becausethe water resources in each fossil aquifer would always beconserved to the extent possible, so that every fossil aquiferwould be a conservation area.

The executive committee, which would be similar tothe LOSC Council, should be composed of all the nationsdeemed to have actual or threatened water scarcity issues, andwho thus would be eligible for receipt of the water extractedfrom the aquifers, as well as a representative from the countryunder whose borders the aquifer lies. The definition of waterscarcity would be established as part of the negotiation pro-cess, but could be viewed in terms of gallons of available freshwater per capita. The executive committee would be chargedwith adopting and executing recommendations made by thescientific committee regarding withdrawals and apportion-ment of the water in the aquifer. The executive committeecould also make requests to the scientific committee for with-drawals, which the scientific committee would be obliged toconsider. Absent a super-majority vote against a withdrawalwithin an established timeframe, which could be as little assixty days or as much as six months, the executive committeerequest would be adopted.

Under what circumstances should a withdrawal berequested and granted? Once again, we can turn for guid-ance to the Bellagio Treaty, which recommended thatdroughts, drought emergencies, and public health emergen-cies be considered special circumstances. Under the proposednew regime, severe droughts and public health emergenciescould similarly be the subjects of withdrawal requests by theexecutive committee to the scientific committee. Since everywithdrawal from a fossil aquifer is unsustainable, no morethan a pre-determined number of gallons would be with-drawn from any aquifer in any one year, unless an equiva-lent amount were committed to be used to recharge anotheraquifer. Special consideration should be given to those water-poor or drought-stricken nations under whose borders a fos-sil aquifer is located. In addition, because other land-basedcreatures depend on fresh water for survival and healthyeco-systems are vital to biodiversity and human existence,requests for withdrawals could also be made when an eco-

system is in danger of collapse, even when no human lives aredirectly endangered. Indeed, a species equity principle couldbe considered as a logical and necessary corollary to the gen-erational equity principle.

As mentioned, withdrawals from an aquifer must be madewith precision and great care in order to avoid contamina-tion and pollution. If an organization similar to the LOSCEnterprise were established, it would implement extractionsbased strictly on advice from the scientific committee. How-ever, because the number of wells and pipelines into the fossilaquifers would probably be limited, the size of the extractiongroup would be small and composed of hydro-engineeringfirms under contract to the executive committee. Thesehydro-engineering firms would have to demonstrate a highlevel of expertise and experience in order to compete for thecontracts, and contracts would be for a limited duration toreduce the dangers of entitlement and corruption.

Who would provide funding for the aquifer managementregimes? Should the nations who are providing access to theaquifers through their territories be compensated in someway? Those countries that are members of the executive com-mittee and who would benefit from the withdrawals shouldjointly bear the overhead cost of the executive committee,the scientific committee, and the hydro-engineering firmsperforming the withdrawals. Those nations under whoseborders fossil aquifers are found, and whose sovereigntywould be impinged by the new system's withdrawal activi-ties, should be compensated for any damage to their territo-ries and should be granted negotiated trade concessions bythose countries benefiting from the water resource to com-pensate them for the loss of their sovereignty over a natu-ral resource. These trade concessions should comport withthe rules of the World Trade Organization but could takemany forms, including preferential tariffs on certain goods,guaranteed imports of certain commodities, and discountedinterest rates on loans. Granting trade concessions and a seaton the executive committee to the nation under whose bor-ders a fossil aquifer lies may obviate the need for an enforce-ment mechanism, since those concessions and the seat can bewithdrawn should the nation prevent access to the aquifer forwithdrawals. As we have seen in recent years with petroleum,nations will resort to warfare when their vital interests aredeemed to be threatened, and under any perspective water isa vital interest to all creatures. In order to reduce the risk ofconflict, the new system should provide a voice and benefitsfor all of the stakeholders.

Conclusion

As we have seen, none of the proposed agreements addressinggroundwater has won enough acceptance in the global com-munity to enter into force. These proposals and draft articles,written by experts who are mired in the same thought pat-terns, repeat the familiar refrain of reasonable use trumpingadequate protection of water resources, and they protect thesovereign right of states to utilize resources within their juris-dictions. Meanwhile, fossil aquifers are being drained at a

Winter 201 1 59

furious pace in support of unsustainable agricultural produc-tion and economic growth. Water that was sheltered in secretpockets for thousands of years has been tapped and depletedat an alarming rate over the course of only a few decades and,in some cases, may be exhausted no later than mid-century.

Two groundwater experts have postulated that, giventhe vast amount of groundwater that exists and the smallamount that is passing through the hydrological cycle, "anenormous quantity of the groundwater reserve may consistof fossil groundwater contained in confined aquifers isolatedfrom surface waters and the hydrologic cycle in general." 337 If

these experts are correct, and there is still much more waterwaiting to be discovered underground, it is time to deviseanother system of governance because the current theoriesand practices simply are not working. Indeed, as JosephDellapenna remarked, in an era of climate change and theresulting demands being placed on fresh water, pressures aremounting both nationally and internationally to reform theold rules governing sharing of waters and replace those withrules that take changing needs into account.338 The situationis too urgent to wait for customary law to develop on thisissue.

This Article proposes that fossil aquifers that have limitedconnection to the surface should be viewed as the commonheritage of mankind and declared to be outside the sovereignreach of any nation. A proposed system of governance has alsobeen advanced, whereby those nations that have a water defi-cit should have the right to share the waters that are in fossilformations. Little can be done to change the present systemof state sovereignty over known fossil aquifers, because nonation that currently relies on that water will voluntarily cedeownership or control. However, if predictions of exhaustionof some aquifers by mid-century are even close to being accu-rate, and if predictions of vast aquifers lying undiscoveredare also accurate, then there is little time to lose in forming anew, equitable, sustainable system of governance to managethose fossil aquifers that have yet to be found, so that theirtreasure trove of a resource vital to all terrestrial life may beavailable to serve us in the parched years to come.

337. Krishna & Salman, supra note 104, at 164-165.338. Dellapenna, supra note 76, at 52.

JOURNAL OF ENERGY & ENVIRONMENTAL LAW60 Winter 201 1

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